DEL VOLUNTARISMO JURÍDICO A LA RAZÓN PRÁCTICA EN EL DERECHO

The plenary validity of the State of Legal Law, jurists predominated, first the legalistic iuspositivist theory and then the pure Kelsenian theory. In this framework, the creation of the law was the result of the will of the legislator or the individual through the contract, it did not require any rational justification to maintain the validity of the legal norm. In times of the State of Constitutional Law (EDC), the thesis of the necessary reconciliation of law with practical evaluative or moral reason is confirmed, appealing to Aristotelian-Thomist or Kantian philosophy. The validity of any legal norm requires the control of rational justification, so that control of constitutionality is assimilated to control of rationality. The doctrine of arbitrary sentence confirms this theory of validity, and it is supported not only by the Argentine Constitution but also for intrinsic or ontological reasons of law.