Legal Realism: antidote to the legalistic hyperformalism of Legal Positivism

Abstract

The Mexican legal system is an offshoot of the Roman-Germanic family, as such, in which the Roman codifying doctrine has prevailed, with Gallic and Germanic nuances, but always indistinctly of an ultra-legalistic cut, which in light of classical Kelsenian theory guarantees legal certainty, but what happens when a system of rules so rigid that it does not admit exceptions is faced with events that occur for the first time, when it is demonstrated that the much theorized and supposed rationality of the lawmaker is nothing more than a little self-critical justification of human nature prone to error and that even with the efforts of the judges to deliver justice through jurisprudential interpretation to correct what the legislator did not contemplate, or even in those cases in which it was legislated incoherently, the courts are trapped between the cold walls of the abstract law that mandates that judges are only the bouche de la loi, as a maxim of distrust from the time of the French Revolution. This rigid method, which forgets that it deals with human beings as parts and elements in all legal relationships, materializes the theory of the bad man of Judge Oliver Wendell Holmes, who points out that the malicious and shrewd individual who knows the rules of the system can use them to produce the opposite of his ends, which is why legal realism presents a third option to ius naturalism and ius positivism, a meeting point, neither ambiguous principles nor immutable laws, but the meeting from a position of legal and ethical logic that allows delivering real justice.