núm. 41 (2014)

The adoption of a theory of law not only represents a legal-philosophical stance,but also carries clear implications on a practical level. In this paper we will see themain tenets of two of the most widespread streams on this topic, representing thustwo not only different, but also opposing views on the law: Legal positivism andneoconstitutionalism.The postulates one become “paradigmatic oppositions” compared to the other. Thisis so because they affect essential areas of Law as the criterion relating to its validity,formation, the role of judges in the resolution of “difficult cases”, among others.Although each theory presented solid arguments in its defense, always leave a loopholethat is exploited by the other to be criticized. This, however, does not hide atendency to include elements proposed by the neoconstitutionalism in Law, mainlybecause of the gaps of positivism facing the demands of today’s society. Therefore,the latter has tried to remain in force through new proposals, such as the so-calledinclusive positivism or softpositivismo that, on more than one occasion is awaysignificantly from the basic ideas of positivism most widespread early last century.