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Henri Lefebvre’s philosophical postulates on the
properties of ideological phenomena: Towards
a critical theory on the role of ideology in the
formulation of judicial decisions
Los postulados filosóficos de Henri Lefebvre acerca de
las propiedades del fenómeno ideológico: Hacia una
teoría crítica en torno al papel de la ideología en la
formulación de decisiones judiciales
Ramiro Andrés Urgilés Córdova
Independent legal researcher
City:
Cuenca
Country:
Ecuador
Original article (analysis)
RFJ, No. 11, 2022, pp. 247 - 283, ISSN 2588-0837
ABSTRACT:
This research formulates an analytical-diachronic
vision of the evolution of the intellectual treatment that the
ideological phenomenon has received by philosophy, from
which it is evident that legal theories about the interaction
between ideology and law have been built on the application
of macro-philosophical systems to concrete legal problems,
because of which these proposals are insufficient or are directly
contradictory to the study of law as an autonomous object.
The intellectual obstacles can be overcome based on Henri
Lefebvre’s philosophical postulates, which make it possible to
articulate a novel critical material theory applicable to the study
of the state and legal institutions, which in turn makes it possible
to develop mechanisms for identifying the incorporation of
ideological burdens in judicial sentences.
DOI 10.26807/rfj.v11i11.325
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KEYWORDS:
Philosophy, Marxism, ideology, political
philosophy, law.
RESUMEN:
El presente artículo formula una visión analítico-
diacrónica de la evolución del tratamiento intelectual que el
fenómeno ideológico ha recibido por parte de la filosofía, a
partir de ello se evidencia que las teorías jurídicas acerca de
la interacción entre ideología y derecho se han construido
sobre la aplicación de sistemas macro filosóficos a problemas
jurídicos concretos, a causa de ello dichas propuestas resultan
insuficientes o son directamente contradictorias con el estudio
del Derecho como objeto autónomo. Los obstáculos intelectuales
antes mencionados pueden superarse con base en los postulados
filosóficos de Henri Lefebvre, mismos que permiten articular
una novedosa teoría material crítica, aplicable al estudio del
Estado y de las instituciones jurídicas, lo que su vez posibilita el
desarrollo de mecanismos de identificación de la incorporación
de cargas ideológicas en las sentencias judiciales.
PALABRAS CLAVE:
Filosofía, marxismo, ideología, filosofía
política, derecho.
JEL CODE:
E5, E6.
INTRODUCTION
Throughout the history of thought, various hypotheses
have been put forward about the nature of the ideological
phenomenon, its implications in social processes, and the role
it plays in the life of political institutions. Despite the great
interest and the enormous amount of bibliographical work,
there is no consensus on the subject, nor has it been possible
to elaborate a coherent theory that applies to the autonomous
study of law. Concerning the current state of the matter, it is
worth considering, as Muñoz (2019) states, that the absence
of satisfactory ways of resolving the interaction between
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ideology and law is due to a confluence of factors, including the
existence of a naïve consensus among legal philosophers about
the irrelevance of the problem, the sectarian application of
certain epistemological models that are not compatible with the
scientific study of law, and the absence of critical genealogical
explorations of existing theories.
It is precisely for this reason that, as Soto (2019)
proposes, any intellectual work that seeks to provide
contributions to ideology must start with a thorough review of
the different proposals that have been presented throughout
the ages, since the concept of ideology is directly imbricated
in the material construction of humanity and in the complex
and convoluted revolutions that have taken place within
intellectuals.
In this line of thought, to draw a clearer idea of the
problem, I will approach in greater depth the thought of the
authors who have made contributions on the subject, for this
purpose I will carry out an initial evaluation of the evolution
of the treatment of ideology by philosophy, subsequently, I will
undertake an examination in the same sense taking as a basis
the theories elaborated within the legal sphere, from this I will
outline a critical theoretical model applicable to the analysis of
Law that will allow me to answer the questions that will unfold
throughout the study.
1. GENEALOGY OF PHILOSOPHICAL THEORIES OF
IDEOLOGY
The relationship between theory and praxis has
received a great deal of attention from philosophers throughout
history, yet there is no agreement on the subject, and each
school of thought has established its analysis. Although the
term ideology has its origins in Greek reflections, it emerges
as a real problem in the wake of several mutations in Western
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philosophical theory - especially in terms of ethics - which
reach their peak in French modernity.
The epistemological variations began in the Middle Ages
when there was a profound transformation of the theoretical
configuration of Greek philosophy and therefore of natural law
so that the Platonic idea - characterised by the division between
the sensible and suprasensible world - went through a process
of internalisation that consisted of abandoning the mimesis of
ideas immanent to things, emphasizing the role of ideas present
in the mind (fantasies in the broad sense). In this context, due
to the notions promulgated by the encyclopaedists and the
political phenomena before the French Revolution, a process of
secularisation took place, the purpose of which was to balance
moral demands and personal freedom, to guarantee the pre-
established moral harmony influenced by Christianity and, on
the other hand, to achieve the restoration of the social order
lost by the humanist renovations.
Legally, such an evolution led to the creation of civil
rights, confronted with a natural law imposed by reason and
materialised in a liberal political order, this renewed natural
law ultimately led to the pre-capitalist subjectivisation of legal
reality, to skepticism about the possibility of determining
normative contents, to the abandonment of such determination
to the demands of ideology. (Gil, 1968). Furthermore, with the
development of the “goddess of reason,” it was argued that the
world of ideas, as well as the plane of praxis, were cognizable
and differentiable.
Later, at the very beginning of modernity, Descartes drew
the intellectual line along which thought began to be conceived
as that of which we can be aware without an intermediary
person. Later, it was Spinoza who produced a complete split
between idea and reality, and shortly afterward Leibniz
elevated the dimension of the two realities, which he called
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the Kingdom of Nature and the Kingdom of the Spirit. An even
more remarkable change is present in Pufendorf’s postulates, in
which the intelligible world is beyond mathematical concerns,
thus drawing a clear and insurmountable distinction between
science and philosophy, thanks to which the positive disciplines
managed to specify their object of study, while philosophy - in a
solipsistic turn - lost contact with material praxis. Moreover, it
is worth noting that the philosophy of modernity superimposes
the world of the spirit on the world of nature, which is reduced
to a secondary material phenomenon. This is how the French
ideologists prepared the ground for the construction of German
idealism, whose theories would give way to Marx’s critique of
ideologies, for whom philosophy tried to imagine something,
without really imagining something real. Marx thus points to
the first meaning of ideology by assigning it a negative value,
concluding that the ideological is the image as opposed to the
real (Ricoeur, 1999).
As the years went by and at the height of Italian fascism,
Antonio Gramsci became the first profound reviser of Marxist
theory, introducing a series of new components concerning the
study of the processes of hegemony and domination, in which
the role of culture and ideology is emphasized, no longer in a
negative sense but in the sense of configuring social material
reality. It is possible to consider this view as a neutral approach
to ideology, which has a descriptive-sociological function.
Despite the negative meaning Marx gave to ideology,
it is worth noting that the theoretical debate carried out by the
Marxist currents of the 20th century - especially the Frankfurt
School - allowed for a broader understanding of this concept,
which began to be formulated in a positive sense as well.
These postulates reach their culmination in the works of Louis
Althusser, who is a critical review of the historicism manifested
by Marx argued that ideology is not only a mechanism of
alienation of subjects, but on the contrary, ideology is inherent
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to every individual, so he would affirm that it is impossible
to develop a concrete practice without the mediation of an
ideology, consequently, man becomes the ideological animal
par excellence. (Estenssoro, 2014).
Althusser would also argue that ideology is not
generated through processes of direct interaction with the
material world, but that it is a product of the representations that
people formulate about that world, the split between material
praxis and representation of the subject would open the way
for the later development of structuralism and postmodernism
through philosophers such as Foucault, Lacan, and Ricoeur
imbued with the symbolic, linguistic and identity construction
of the ideological.
1.1. A brief critique of theoretical constructs about ideology
The ideology as a phenomenon with concrete
practical implications, although it had merited a certain
theoretical development since Western antiquity, became a real
philosophical problem at the beginning of French modernity
and the development of ideal subjectivism, which laid the
foundations for the recognition of rights inherent to the person
(mainly civil rights before the social contract); the material
processes that took place in 16th-century French society would
lead to the secularisation of morality and would sharply establish
the distinction between idea and matter, separating the former
from the latter, which would be handed over to the scientific
field as a secondary object of study. The term ideology was
coined belatedly by Destutt de Tracy in 1796, who, based on the
ideas of his time, aimed to articulate a theory about the genesis
of ideas or the science of ideas, the purpose of this discipline
being the knowledge of man based solely on the analysis of his
faculties. The analysts who followed Destutt - inspired by the
Enlightenment and the philosophy of Descartes - had similar
intellectual pretensions and were called ideologists.
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Soon after, the recent definition and its main defenders
were disqualified by Napoleon Bonaparte; however, Napoleon’s
proposals moved in the political field and lacked rigour on
the theoretical level. Then, it would be Marx who would base
his critical position on a transposition of Hegelian idealism -
which condensed the subjective construction of modernity
- proposing a system in which the advance of history obeyed
material causes, which is why for Marx from the point of view
of ideology “Law, like religion, lacks its history, its history refers
rather to that of a set of industrial, commercial and property
relations between men” (Sotomayor, 2019, p. 206).
Further on, Gramsci in his revision of Marx’s
ideas establishes two functions of the power of the ruling
class (bourgeoisie): coercion (domination) and consensus
(hegemony). According to the author, domination would be
affected through the state platform, while hegemony would be
developed mainly through cultural apparatuses. The relations
between these two dimensions were modified throughout the
Italian author’s works. And, in the initial stage, he establishes
the preponderance of civil society over the state platform. This
theoretical development is remarkably close to German social
democracy since Gramsci’s followers argue that the Western
state is not a repressive
factum brutum
, but that the masses can
establish models of representation and elect the government
of their choice based on spheres of freedom in which material
interaction with reality loses relevance.
Gramsci later became aware of his contradiction with
Marxism and modified his original theses. Thus, in a second
moment, he stopped superimposing civil society on the state,
so that in his new scheme, under the definition of civil society,
he lumps together a very broad institutional spectrum that
includes private apparatuses such as the Church, trade unions,
and educational institutions, on which he focused his attention
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and which he worked on with greater academic rigour despite
the fragmentary nature of his work. Despite the conceptual
richness of Gramsci’s work, I argue that his approach is
flawed in that it omits the relevance of the state itself and the
processes of the material construction of history, unjustifiably
attributing characteristics of absolute freedom (in the sense of
political rights) to society, such spheres of freedom according
to the Italian theorist’s postulates seem not to be mediated by
interaction with the means of production, thus leaving aside the
concept of alienation, central to Marx’s work.
Thus, to clarify concepts, Gramsci ends up on several
occasions confusing or deforming them even further, so that
when he speaks of coercion, he locates it both in the state
apparatus and in society, when this function is exclusive to
the former, at least in the sense that Weber, Marx, and Engels
attributed to the state. Gramsci in his later works takes up
previous ideas and directly eliminates the boundaries separating
the state structure from society so that the state phagocytizes
the means of coercion and hegemony, and the distinction
between civil society and the state as differentiated assumptions
acting at different levels vanishes. The state thus becomes a
gaseous entity without established borders, which makes it
frankly impossible to establish its nature and characteristics
concerning its social functions. In short, Gramsci’s theoretical
development, while placing under analysis some interesting
elements that Marxist theory had not considered, is incapable
of offering clear answers about the material construction of
history, precisely because of which the functions of the various
institutional platforms disappear, culture seems to replace the
material economic structure and the possible social reforms are
reduced to the superstructural dimension. Thus, in Gramsci’s
view the defined institutions, the state, and praxis are dead.
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Later the French-Algerian philosopher Louis Althusser
developed Gramsci’s postulates to their ultimate consequences.
The result was the thesis that religions, political party systems,
workers’ unions of great relevance at the time, families,
educational institutions, the media, and cultural emporiums
were indeed the ideological apparatuses of the state. In
explaining this notion Althusser (1970) states:
It is irrelevant whether the institutions in which
ideologies are realised are public or private because
they all indifferently form parts of a single dominating
state, which is the precondition for any distinction
between public and private. (p. 158)
Attempts to eliminate the specific delimitation of the
state are based on the work of Benedetto Croce. He argued
that the real state - understood as the motor of the processes
of historical progression - can sometimes be found not on the
legally defined plane, but in many cases in the private sphere,
and sometimes in revolutions. Thus, Croce notably confuses the
state with the motor of history, thus on the one hand reducing
the state institutional component to the prevailing social
force at a given moment, and on the other hand constructing
a descriptive-positive theory that does not intervene in the
historical evolution, denying any viability to material praxis,
such reductions to a greater or lesser extent will be present over
time and will find a profound renewal in postmodernism and
structuralism through its exaltation of culture and difference.
Benedetto Croce’s postulates are illuminating
concerning the constructs that have been drawn in the history
of ideologies, especially about the passive role played by theories
that blur the concrete functions of institutions (mainly the
state) either by relegating the manifestations of power to the
mere cultural field or by establishing structures that interact at
levels far removed from social reality, which through elaborate
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solipsisms become impassable. Thus, when the state is not
specifically determined, or in other words, the mechanisms
of hegemony and domination are diffused in a multiplicity of
spheres with vague characterisations (in the case of Gramsci)
or fragmented in structures connatural to the existence of
ideological animals (in the case of Althusser), objective praxis
as a specific task and action-oriented to a determined end loses
meaning. Based on these assumptions, any theory that claims to
be critical, at the risk of becoming stagnant like all descriptive-
positive theories, must establish clear formulations about the
properties of the institutions in force at a given moment.
To conclude the critique of Gramsci, it is worth
mentioning that many of his formulations are opaque and even
contradict the Marxist substratum they are supposed to defend.
Thus, the Italian sometimes argues that consent is to be found
in the sphere of civil society, which is thus superimposed on
the state, and on this basis, it can be concluded that the power
of the bourgeoisie results above all from consensual processes
in which cultural domination plays a fundamental role. The
formulations about the cultural battle are erroneous, firstly
because non-hegemonic classes cannot be culturally dominant,
since culture reproduces the processes of interaction with the
means of production so that if capitalist forms of production are
maintained, the prevailing cultural manifestations will only exalt
these processes so that changes in the superstructure alone do
not have the power to produce profound structural changes.
It seems that Gramsci, in attempting to introduce
renewed elements of analysis - very rich indeed insofar as
they opened up fields of study that had not been addressed in
their real dimensions until then - about the exchanges between
the structure of economic production and the superstructure
(possibly to save the economic determinism for which Marx
is constantly accused), He ended up by relegating the plane of
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interaction with the means of production, thus by considering
this concept as mere economism he forgot the conceptual
importance of alienation, which plays a central role in Marx’s
work, thus constructing a theory which starts building the
house from the roof and which is opposed to any objective
practical action.
Concerning structuralist and postmodern thought
(Althusser Lacan, Foucault, Ricoeur) it is worth noting critically
that these types of philosophical doctrines - in a late resurgence
of the inaction schemes of positivism - through their approach
to games and interactions between syntagms and symbols
(depending of course on the author in question) have outlined
postulates that show little more than resignation and even the
apology of what in our time can be defined as ‘weak thought’,
expressed - among other things - by the abandonment of the
critical notion of ideology and its replacement by the analysis of
culture, more precisely multiculturalism and diversity (Grüner,
2003). In this way, a kind of fetishism is generated which, in the
last instance, extols the cult of symbolic and identity-building
processes, which cover up the disparity in the ownership of the
means of production through the legitimisation of multicultural
societies of exchange.
2. IDEOLOGY AND LAW: BETWEEN PURE LEGAL THEORY
AND POSTMODERNISM
The treatment that ideology has received in the
philosophical field, far from being uniform, has merited multiple
and dissimilar formulations that obey deeper philosophical
assumptions (for example, the difference between idea and
matter, the argumentation in favour of the determination of
idealist or materialist philosophical doctrines, the consideration
of the state and institutions, etc.) that have considerable
implications in political, ethical and, of course, legal theory.
Then, legal theoretical models have generally lacked intellectual
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autonomy and have been part of processes of applying broader
philosophical postulates to particular areas such as the theory
of justice, the structure of norms, the role of the state, and
other problems, It is precisely for this reason that most of
the theoretical elaborations of legal philosophers throughout
history have lacked systematicity, coherence or have directly
contradicted the practical aspects of the assumptions they have
expressed, in some cases even endangering the consideration
of law as an autonomous object of study.
The process of applying macro philosophical theories
to the legal field becomes evident in the consideration of the
functions of ideology concerning Law. In this line of thought,
I propose a diachronic review, by no means exhaustive, of
the main visions that have been elaborated around the links
between the ideological phenomenon and Law, for which I
highlight the postulates that have had the greatest relevance
in the establishment of paradigms in the development of legal
philosophy and the construction of theoretical models about
the delimitation of legal reality, namely: a) the subjectivist
iusnaturalism of French modernity (already analysed in previous
paragraphs), b) the scientific positivism of Hans Kelsen, c)
the analytical positivism of Herbert Hart, d) some theories
formulated after Kelsen’s positivism came into force, in which
the importance of democracy and the moral revitalisation of
justice is highlighted, such as Dworkin’s proposal, and e) the
application of post-modern doctrines to the legal field through
cultural theory in which discourse plays a vital role.
Regarding iusnaturalism, it is worth emphasising what
was said above about the importance that the development
of ideal subjectivism (absolute separation between matter
and reality) played in the consolidation of normative systems
and theories of justice that affirmed the existence of rights
connatural to individuals (especially property rights), which
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were considered before the formation of society and the
elaboration of the social contract. These types of proposals,
by elaborating illusory conceptions of the real, are completely
erroneous since they move away from the study of social
objectivity, and therefore end up legitimising a certain situation
which, in the case of secular iusnaturalism, was the rise of the
enlightened bourgeoisie that would become the driving force of
history from that moment onwards.
As an initial approach to legal positivism, I will refer
to some aspects of Kelsen’s theory to thread together some
nuances about the role of ideology in the work of the Austrian
legal philosopher. To this end, it is necessary to refer to Kelsen’s
conceptualisation of ideology, according to which, for the
Austrian jurist, there are three meanings of ideology, viz: a)
ideology as opposed to reality (Marxist conception), according
to Kelsen, for Marx, Law is an ideological conatus which conceals
a certain state of affairs or an economic interest (on this point
the Austrian thinker confuses interest with material interaction
of social agents, possibly due to superficial readings of Marx’s
work), on this point Kelsen without further justification
affirms that the normative is not opposed to reality, since
such a position would establish an erroneous theory of law; b)
ideology understood as social space not mediated by natural
causal laws, according to Kelsen law is the authentic meaning
of ideology, since the normative order cannot be reduced to the
natural world. However, it is worth saying that the synonymy
between ideology and social system is superfluous, so on this
point it is possible to see Kelsen’s serious reductionism, possibly
influenced by his scientistic intentions and some erroneous
readings of reality inherited from radical positivism; c) ideology
as disfigurement, which is present in the formulations of law in
Kelsen’s time; this type of theoretical constructions perform a
non-descriptive, justifying function, which deforms the object
of law, This transfiguration occurs when the appeal is made
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to supposed natural stages (existence of law inherent before
an existing order) or to metaphysical transcendental aspects
(iusnaturalism), i.e. ideology understood as the meddling of
meta-descriptive elements in the construction of a pure theory
of law, which is precisely the ideological form that Kelsen
combats throughout his work.
Although it is to Kelsen that we owe the recognition of
law as an autonomous object of study that can be cognitively
identified based on differentiated characteristics, it should be
pointed out that this thinker makes a notable error when he
uncritically transposes the characteristics of the objects of study
of the positive sciences (phenomena that occur necessarily and
are subject to the laws of causality) to the object of study of law,
Although it has defined institutional and linguistic properties, it
also participates in and originates from the processes that take
place in society, which is why it cannot be reduced to simple
natural laws.
In short, for the Austrian intellectual, ideology
intervenes when contaminating elements, whether political,
religious, or sectarian, are introduced into the treatment of
the object of study of law, which Kelsen identifies with norms.
In this way, we can consider that ideology impurifies the
methodological process of constructing the science of law but
does not have authentically social functions concerning the
genesis of law as a by-product of the political life of the state;
this position, as indicated above, does not respond to the nature
of the material production of human history and is therefore
insufficient.
Having dealt at length with Kelsen’s work, it is necessary
to refer to the postulates of Herbert Hart, who undertook the
task of renewing the positivism initiated by Kelsen. About the
intellectual pillars of Hart’s legal theory, it is possible to see
the great influence of the analytical philosophy of language,
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especially Austin and Wittgenstein. Analytical philosophers
maintain that only the propositions of science that are based
on the verification of real objects, as well as the propositions of
syntax without regard to their meaning, have empirical value.
Given the epistemological structure, Hart assumes that the
problems that legal philosophy deals with are the same as those
that have been discussed in the field of cognitivism. Through
this process that renews English empiricism, philosophy is
reduced to the syntax of science. A fundamental characteristic
of analytic philosophy has been the thesis that language is the
cornerstone of all objectivity, furthermore the study of language
replaces the study of man, who is lost in the interweaving of
syntagma.
Although Hart does not elaborate on a concept of
ideology, it is possible to infer it from the work of analytical
philosophy, for this it must be considered that for Hart language
is the starting point on which legal reality is constructed, and it
must also be considered that for the analytical schools there are
no philosophical truths in strict rigour. Moreover, the ideological
would consist of a certain articulation of a determined thought,
which is a strict sense is neither false nor true and which can
only be analysed logically, it is for this reason that ideology (as
a principle of violation of given logical assumptions) would
arise in cases in which the language is permeated by violating
logical principles of legal construction. In this regard, it is worth
pointing out as a criticism that although the Law as a structured
set of language (metalanguage of regulation) participates in
the logical rules of language, it is not a natural or necessary
phenomenon on which only the phenomenal logical description
fits, but on the contrary, it is a historical manifestation of a state
of things at a given moment in time.
It is also worth referring to the theory of Ronald
Dworkin who, in his arduous criticism of legal positivism - based
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mainly on the role of principles and their difference concerning
norms - specified his thesis on the application of principles in
difficult cases, according to which the virtuality (application
in the strong sense) of principles is only manifested when in a
defined process it is not possible to subsume a legal norm to a
factual situation, i.e. only in cases in which there are normative
gaps, Dworkin did not develop his theory more extensively
on this point, so it is possible to argue that in cases where the
rules were clear, they could be applied without resorting to
another type of mechanism, which is extremely difficult since
“the configuration of fundamental rights varies not only in
doctrine but also in legislation” (Rojas, 2019, p. 93). 93). In
this way, it is possible to consider that the application of the
principles according to Dworkin is ideological since it is based
on a conception that does not delimit the law, and therefore
unjustifiably introduces in a hidden way the logical need for the
referral to supra-legal moral principles, a theoretical resource
that in essence is nothing more than the defence of the liberal
model through the law.
Therefore, although Dworkin is not an iusnaturalist
academic in the strict sense, he introduces ideological elements
in his formulations, which in turn allow us to see what his
conception of ideology is. Moreover, as in the case of Hart,
there is no concept of ideology pointed out by Dworkin himself.
Nevertheless, with what has been analysed up to this point, it is
valid to maintain that for Dworkin the role of ideologies would
be found on an infra-legal plane, or in other words, the very
foundation of law would be found in the ideological exchange
that is manifested in the democratic game defended to the hilt
by the author. In this order of thought, ideology would not
invade the field of law unless there were applications of norms
contrary to its meaning, or the incorrect application or lack of
application of supra-legal principles in cases of gaps in the law,
which would not be legitimate for Dworkin as it would violate
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the very essence of liberalism based on the free anthropological
construction of moral values based on the principles of freedom
and property protected by legal justice.
To conclude this diachronic journey, I will refer
to the theories that attribute a cultural value to law. These
doctrinal models emerged from the work of authors such
as Peter Goodrich, Douzinas, Pierre Schlag, and Drucilla
Cornell, who applied the postulates of postmodernism (Lacan,
Foucault, Althusser, Ricoeur) to the legal field intending to
combat the ideas promulgated in the Enlightenment and put
an end to philosophical ideas that emerged in modernity,
such as truth, totality, progress, freedom, and justice. For a
better understanding of what has been discussed up to this
point, it is necessary to refer to cultural theory, which can
be conceptualised as an interdisciplinary study that is mainly
characterised by the lack of clear delimitations about the
various objects and methods of analysis of these.
Despite the existing dispersion, it is possible to assign
some persistent particularities among the various authors:
a) Great interest in the processes of construction of
meaning and the mechanisms through which these
meanings become discourses, furthermore, cultural
theorists have elaborated an artificial analogy between
culture (multiculturalism) and language, from which
they maintain that at all levels there are systems of the
interaction of signs (for example in the urban design of
a city according to its ordinances, in the different types
of clothing of the jurisdictional authorities, etc.), these
systems of the interaction of conduct and expression
draw the models of daily life and the codification of
social exchanges through the Law. Also, the cultural
theorists have elaborated a contrived analogy between
culture (multiculturalism) and language.), these
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systems of the interaction of behaviour and expression
shape the patterns of everyday life and the codification
of social exchanges through law.
b) legal postmodernism maintains that discourses -
in the style proposed by Foucault - are generated in
certain social sectors and through them, meanings are
generated, moreover these expressions do not play
a solely communicative role in the traditional sense,
but on the contrary, being active manifestations of
power, they elaborate the reality we inhabit, in short,
culture becomes a producer of multicultural reality,
the real in this order of ideas becomes a by-product
of the multiplicity of discourses that make up culture,
Thus, the construction of reality would be based on
the marginalisation of certain meanings, on the other
hand, the possibility of objective evaluation of these
discourses is suppressed, since for the authors of
cultural theory no parameter allows the accuracy or
morality of a discourse to be verified, as a result of
which the classical categorical standards vanish and the
cultural modeling of reality reaches levels never before
thought of;
c) cultural theory as a good heir of postmodernism is a
multidisciplinary study that is built on various subjects
such as philosophy, art, literature, psychoanalysis,
semiotics, and sociology, so that in the legal field it
would mean the construction of a hyper-fragmentary
legal theory that would study the mechanisms of
construction of meanings that underlie judicial
elaboration in a broad sense, seeking the establishment
of processes of cultural openness of the legal
phenomenon.
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Concerning the positions analysed in this section,
it is possible to establish by way of synthesis that the various
legal positions on the interaction between ideology and law
have been constructed based on broader intellectual structures
which, in their application to the legal field - are understood
as a historical material phenomenon, but which at the same
time retains differentiated characteristics - are insufficient or
manifestly contradictory to the construction of a congruent
philosophical scheme. Furthermore, the intellectual turn
carried out by the thinkers of French modernity allowed the
development of ideal subjectivism, which in turn manifested
itself in the introduction of bourgeois ideological forms in the
study of law, such as the development of civil rights supported
by secular iusnaturalism.
Years later in the legal field, it was Kelsen who made
the greatest contribution to the establishment of mechanisms
for identifying an autonomous object of law separate from
ideology, but despite this, by sustaining his intentions in the
postulates of the Vienna Circle, he ended up reducing the
study of law to laws of a descriptive nature manifestly contrary
to the social character of law, Hart’s attempts in the field of
logic would have similar consequences, while the theories that
resort to the existence of supra-legal norms (with greater or
lesser pre-eminence over positive norms) as in Dworkin’s work
reflect the ideological establishment of a state of affairs, which
in the case of the American professor is liberal democracy in
which ideology plays the role of sustaining political debate.
Finally, the application of post-modernism, especially
the theories of discourse and multiculturalism, has been widely
accepted in recent years and, although they take up elements
forgotten by positivism, they produce a hyper-fragmentation of
the legal phenomenon and of the institutions, which is why they
engage in eternal solipsism alien to any material social process.
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As in the philosophical field, various theories have
been developed in the field of law about the functions of
the ideological phenomenon. In this process, ideological
positivism played an important role in establishing that law
could be studied independently, although this contribution was
sustained on ideological bases (classical liberalism) which have
subsequently been transformed to advocate the reconsideration
of the identification between law and morality, as in the case
of Dworkin, These tendencies have been opposed equivocally
by post-modern studies that end up nullifying the possibilities
of the critical analysis of Law understood as a delimited
phenomenon. In the face of the insufficiency of the postulates
outlined so far, Henri Lefebvre’s considerations offer answers
to the problems posed.
3. HENRI LEFEBVRE’S CRITICAL THEORY: TOWARDS
THE RECOVERY OF THE DELIMITED NATURE OF THE
IDEOLOGICAL PHENOMENON AND THE DEFINED
CHARACTER OF LEGAL INSTITUTIONS.
Lefebvre outlines his conceptualisation of the ideology,
starting from a dialectical attack on the ideal schemes previously
proposed by philosophy. Thus, for Lefebvre, ideology is the
false consciousness that opposes dialectical thought (Lefebvre,
1976), since dialectics is the mechanism that allows access to
the real being of thought. Even though the postulates referred to
above have strong parallels with Marx’s formulations, it should
be clarified that for Lefebvre, although ideologies establish a
series of deformed and deforming representations that tend to
become institutionalised (Lefebvre, 1968), they also maintain a
relationship with praxis, since they are a mode of manifestation
of the real.
It must therefore be emphasised that for Lefebvre, as for
Marx, the capitalist mode of production “makes consciousness
confront its internal dialectic because the doubly free workers
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are presented with their social being, as something alien that
dominates them and in which they at the same time affirm
themselves as free” (Steimberg, 2021, p. 103). It is precisely
in the interstice between idea and matter that the work of
the critical intellectual makes its way, seeking to destroy all
formalisations of the real that is generated by the processes of
institutionalisation and petrification of material life.
The theoretical scheme that Henri Lefebvre proposes
aims to de-formalize those processes or contents that are the
product of alienation. In the proposed critical theory, the
sociological aspect makes it possible to apprehend the forms
through the study of institutions, while the analysis of history
facilitates access to the processes which, being charged with
content, lead to the genesis or elimination of social forms,
which, despite undergoing constant change, are perfectly
differentiable, unlike in Gramsci’s theory.
It is worth mentioning that ideological processes likewise
allow old forms to acquire new content (for example, when old
legal institutions such as marriage mutate their characteristics
due to changes in the dialectical-historical structure). Thus,
Lefebvre’s theory materially studies the past, intending to
understand the present and from there construct the future
through praxis. Although the French intellectual worked because
of sociology, philosophy played a fundamental role in the
development of his theoretical constructs, since sociology could
only become a critical discipline if it was inscribed in broader
philosophical assumptions (Trebitsch, 2004).
By bringing together history, philosophy, and
sociology in a critical theory, Lefebvre achieves a remarkable
understanding of social phenomena, which are built on the
infinitude of the human spectrum, thus Lefebvre’s postulates
seek the construction of a distant order, in which the one-
dimensional man (Marcuse) is abandoned for the construction
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of the total man. Then, we can consider that the postulates
of the French sociologists’ distance themselves from Marxist
philosophy about economic determinism, despite this, the
material role of social praxis is rescued, especially concerning
the social production of the spaces that we inhabit and that
shape the institutions (Cápona, 2019).
From what has been said above, it is possible to
consider that Henri Lefebvre pierces the solipsistic locks of a
postmodern hyper-phenomenology, imbued with the treatment
of the empirical, which makes impossible any dialectical
negativity that opens the way to critical praxis. The theory
developed by the French thinker makes it possible to bridge the
split between the
res cogitans
and the
res extensas
produced in
enlightened modernity as outlined in previous paragraphs, in
the same way, it makes it possible to break with any kind of
economic determinism that could be found in Marx’s theory
and applied to the field of Law it allows for the understanding
of the functions that institutions fulfill in the material order,
making it possible for having a greater understanding of the
interaction of ideology (as means that reflect the true) with the
institutions given in a specific historical moment.
Lefebvre’s theoretical construction advocates the
rethinking of being understood as unity, which is why a
critical social theory in the sense pointed out by this author
is categorically opposed to the end of history and of the
human-material construction of historicity that is present in
the affirmations of neoliberal and postmodern intellectuals
(Alexandre Kojève, Raymond Abellio, Francis Fukuyama),
Raymond Abellio, Francis Fukuyama), in this line of thought it
would be possible to affirm that History will last as long as there
is praxis, and praxis will exist as long as the human phenomenon
persists. The approaches outlined so far can be summarised
as the recovery of the concrete material, of institutions with
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differentiated functions (despite the recognition of the
complexity of their interaction even on levels that go beyond
mere factuality, such as culture), of the state as the material
product of a certain order of things and therefore of Law as a
political-legal entity that can be understood autonomously, all
within the framework of a humanism that advocates the return
of the total man.
Lefebvre’s philosophy represents a brilliant intellectual
attack against post-modern idealism and its henchmen
(neo-colonial analyses, the multiculturalism of the English
anthropologists, post-modern neo-liberalism, etc.), and
idealism which in its various forms seeks to destroy in a single
manoeuvre the authentic freedom of man and the role of his
praxis.), an idealism which in its various forms seeks to destroy
in a single manoeuvre the authentic freedom of man and the role
of his praxis; it is thus that when everything is converted into
a consumable form, the ideological as a mode of representation
of a stage of material conditions become authentic, in this way
the state is blurred and the juridical phenomenon becomes one
discourse of power among many others.
In short, Lefebvre’s theses overcome some excessively
static aspects of orthodox Marxist theory, integrating
various components of social material interaction that do
not only refer to the economic field. In parallel, based on the
assumptions made by the French philosopher, a theory can be
constructed concerning the identification of the mechanisms
of manifestation of ideology based on the determination of
defined properties of the state and the law.
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4. INTERVENTION OF IDEOLOGY IN THE FORMULATION
OF JUDICIAL DECISIONS. TOOLS AND MECHANISMS OF
CONTAINMENT WITHIN THE NORMATIVE ORDERS.
To begin with, I would like to stress the importance
of the material paradigm concerning the understanding of
the profound interweaving of relations between the political,
economic-material, and legal systems. The vitality of this
theory is evident precisely because it makes it possible to
examine legal operators in terms of their place in the general
fabric of the social organisation, which is precisely the
advantage of this approach over opposing views such as the
linguistic study and the study centred on the role of judges as
autonomous entities (Raz, 2001). In this respect, based on the
theoretical development elaborated so far, I outline an outline
of the mechanisms of intervention of ideology in the different
processes of judicial decision-making.
It is worth mentioning that he did not make a distinction
between social and cognitive functions of ideology, for in this
study I argue that law is a material-institutional product of the
state, which in turn derives from a certain situation.
Furthermore, the ideology is gestated in the social
substratum as a deformed and distorting representation
that tends to become institutionalised, because of which the
cognitive functions of ideology become manifest precisely in
the legitimisation of a certain institutional form that in turn
legitimises a certain way of interacting with the world.
This is why, according to my analysis, ideology does
not manifest itself as a configurative mode of reality (Gramsci,
Althusser), nor does it interact with the democratic substratum
that legitimises law (Dworkin), but rather it is a certain
deformed representation of social objectivity that tends to
institutionalise itself by justifying a certain mode of human
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interaction produced in the social material base. The ideology
would allow the structuring of certain models of justice that
are received in a system of positive law, From this, it is possible
to consider that the legal phenomenon as a way of presenting
the real, despite not coinciding in a strict sense with historical
material objectivity, also possesses defined and identifiable
forms, so that as a logical-discursive institutional practice
it can also be deformed through the various mechanisms of
interaction of legal operators with legal reality.
In this line of thought, judges play a fundamental role,
since it is precisely through their jurisdictional activity that
the material component of the law is made present, which is
precisely why I will focus my analysis on the relations and
mechanisms of manifestation of ideological thought in the
different processes of articulation of judicial sentences.
Based on the above, the ideology of judges can show
itself in the various phases of the elaboration of a judgment
1
,
even though the axiomatic assumption of decisional impartiality
forces the judge to conceal possible ideological manifestations
present in a judgment, which is why tools and mechanisms
are required to identify them. Then, it is possible to state
that a judgment can be based on theoretical elements that
contradict the general properties of a normative system, either
by introducing ideological charges in the discourse of logical-
rational motivation of a judgment, or directly in the application
of rules or principles; due to their importance, it is necessary to
analyse both circumstances separately.
1
Concerning this, a procedural distinction is proposed regarding the
different phases through which a judgment is articulated. The first
corresponds to the judge’s argumentative discourse, which occurs both
initially in the first logical-linguistic approach that a judge has to a case,
and at the end of the case intending to justify his decision; on the other
hand, the second moment refers to the logical-applicative process of rules
or principles which refers to the subsumption of the facts to specific rules
and principles.
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4.1. Introduction of ideological elements into the judge’s
argumentative discourse
The judicial argumentative process is of fundamental
importance in the elaboration of judicial decisions since it is prior
(logical-linguistic process) and at the same time subsequent
(discourse of resolution) to the logical-applicative process of
norms or principles, since in the first moment it intervenes in
the logical-epistemological structuring of the theory of a case,
This, in turn, makes it possible in a second moment to apply
norms or principles belonging to the legal system, to finally be
present in the articulation and justification of the elements that
form part of a decision, as well as in the formulation and use of
theoretical-doctrinal elements.
The logical-linguistic processes, as they occur in the
intellectual sphere of the judge, are not clear in the judgment
and can only be studied once they have manifested themselves
in the logical-applicative process. The first would be the simple
justification of the logical-applicative process using rhetorical
arguments, while the second would consist of superimposing
doctrinal elaborations on the logical-argumentative process.
In this hypothesis, the legal system would simply cease to be
unjustifiably considered as a means and source of resolving a
case, and theoretical arguments would be used as a direct source
of the decision, using the rules or principles of the normative
body only as a mask of legitimisation.
In either of the two hypotheses concerning the genesis
stage of judicial rulings, the mechanisms employed for the
introduction of ideological charges would be the incorporation
of significant evidence contrary to reality and the use of
apparently logical implications. The first mechanism refers
to the justification of a point of view through evidence that
explains what is affirmed, even though the evidence provided
does not objectively exist or its logical implications have been
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distorted, thus producing legal consequences contrary to the
neutral application of the normative framework.
For its part, the use of apparently logical implications
can be defined as the data or logical connections that are not
expressly established in a judgment, but which are implicit in
the dogmatic constructions of the ideology to which the judge
adheres, and which are assumed to be true by the decision-maker,
for once a certain set of values forms part of the mental model
of a subject who professes an ideology, certain assumptions
acquire a self-evident character, which can be understood and
shared by any member of that ideology, moreover the judicial
agent assumes a discourse that can only be fully understood by
the members of a group.
4.2. Introduction of ideological elements into the logical-
application process of rules or principles belonging to the
legal system
In this case, it would be necessary to differentiate
between two possible scenarios: the first would occur when
ideological elements are manifested in the presence of a rule
that forms part of the legal system and which, due to the nature
of the factual assumptions, must be applied. The ideological
constructs would lead the judge to stop applying it, distort its
interpretation or twist the factual assumptions to make them
coincide with preconceived ideas.
We would be facing the same scenario if there were no
positive rules that could be subsumed to the case but that, due to
the nature of the case, the application of principles would allow
a resolution following the law in force, in this hypothesis the
judge would cease to apply said principles because he considers
them insufficient, not applicable or because he has distorted the
facts to adapt them to a positive rule that is not applicable.
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In this case, the introduction of ideological elements
could only be justified if two parameters are met, namely: a) the
axiomatic foundations of a normative scheme such as human
rights, constitutional values, or the general considerations
about justice contained in that system are insufficient to
provide an answer, b) the decision issued in turn does not
violate other norms, principles or axioms of the legal system.
In cases where both parameters are met, the introduction of
ideological burdens in a judicial decision would be tolerable if it
does not represent a violation of the applicable law.
The resources used by judges to introduce ideological
components into their judgments during the logical-application
process of norms are presupposition, illustration, and
polarisation. Presupposition consists of assuming that the truth
of a certain assertion has been established when no such truth
has been established at all, but only a value judgment has been
expressed. Illustration, on the other hand, can be conceptualised
as an exemplification that, despite not being logically related to
the specific case, seeks to justify the accuracy of an assertion or
argument. Finally, polarisation is a semantic strategy through
which unjustified differences are established between legal
subjects, favouring the equal over the supposedly different or
contrary.
To conclude this section, it seems necessary to clarify
that the different mechanisms described in previous paragraphs
do not appear uniformly or exclusively in certain phases of the
articulation of sentences, since the resources analysed often act
as a support for other techniques, or their properties may be
shared and act at different logical-argumentative levels.
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4.3. Limits to Ideological Manipulation in the Articulation
of Judicial Judgements: Perspectives of a Critical Material
Theory
So far, sufficient theoretical elements have been
pointed out in favour of a material theory of law, according to
which legal institutions have differentiated properties that in
turn derive from the previous historical emergence of the state
in the sense pointed out by Marx and Weber, as opposed to the
formulations of Gramsci and contemporary post-modern and
structuralist authors. In this way, based on the contributions
of Henri Lefebvre, ideology has been conceptualised as a
deformed mode of manifestation of the real which tends to be
institutionalised concretely, and in this line of thought, even
though ideology is opposed to the real, it can also be identified
and analysed objectively.
On this basis, it is feasible to affirm that ideological
manifestations in the formulation of judicial sentences, far from
being connatural to the intellectual activity of judicial agents, are
clear as deforming modes of discursive-applicative interaction
on the part of legal operators concerning the objectivity of
a legal system in force (a set of cognitively identifiable rules
and principles). Along these lines, the deforming function of
ideologies can be identified more easily in the case of judges,
since they operate in the argumentative and applicative
processes of the normative order through the creation and
justification of a concrete resolution. Thus, the introduction of
ideological components in judicial rulings can be cognitively
identified by a neutral individual who knows the axiomatic and
normative characteristics of a given system, and it is precisely
on this basis that it is possible to propose a set of tools for the
purification and annulment of such rulings.
It is worth mentioning that the mechanisms announced
in this article find their applicative-deontological bases in the
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axiomatic and normative presuppositions of an existing legal
system, which is why it is not proposed to resort to the use of
supra-legal norms. Also, the tools proposed in this work are
eminently procedural in nature.
In this line of thought, the main means of controlling
ideological sentences must be positivised in the legal system,
which would allow for their viability and practical effectiveness.
Regarding this problem, I propose two tools of feasible
implementation, the first is procedural and institutional, while
the second has a practical social character.
In terms of procedural instruments, I would highlight the
relevance of the mechanisms for the control of legality and
constitutionality by specialised courts. Thus, the deformations
that occur in the logical-application process of norms would be
corrected through the control of legality that is carried out in
the different instances of judicial review, but which acquires
greater relevance in the courts of cassation, which play a
fundamental role as they have jurisdiction over the resolution
of appeals for cassation that tend to re-establish the rule of law.
Although the mechanisms for the control of legality
are almost uniformly accepted in legal theory, methodological
problems could arise if the remedy of cassation is seen as a mere
mechanical exercise of verifying compliance with the law, As
a result, it becomes imperative to develop theoretical schemes
- whether, by way of jurisprudence or law - which establish
standards for the neutral and logical application of infra-
constitutional norms, the use of such schemes would become
obligatory for judges, and should therefore be integrated into
the reasoning of the decision, understood as a fundamental
guarantee. At this point, it should be mentioned that the basis
of any legality control mechanism is based on rationality, which
is a tool that the judicial operator can use in each case, following
the rules of logic, thus allowing the control of the validity and
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internal motivation of the judicial decision (Ruiz, 2019).
On the other hand, constitutional control would
have the objective of consolidating a normative notion of the
Constitution -valid on a legal and sociological level- which “can
only be achieved when harmony is achieved between the formal
Constitution and the material Constitution” (Zaldívar, 2017,
p. 252). Although constitutional courts are more active in the
generation of jurisprudence, in the absence of treatment of the
ideological problem by the academy, it would also be necessary
for there to be clear jurisprudential parameters that allow for
the evaluation of whether the application of constitutional
norms and principles was carried out within the framework
established by the legal system.
Finally, the recognition of certain practices of neutrality
on the part of judges - in the sense pointed out by Hart - would
guarantee the purging of ideologically charged judgments in
the very intellectual sphere of judicial agents; such practices
of recognition must be constructed both intellectually and
through the institutional platform of the state and the political-
constitutional organisation of its functions.
CONCLUSIONS
The nature of the ideological phenomenon has received
different philosophical formulations throughout history,
especially since the beginning of enlightened modernity, which
on the theoretical level allowed the consolidation of ideal
subjectivism, which established an absolute separation between
the world of ideas and the real world. From the formulations of
the French ideologists of the 17th century onwards, ideology
acquired a negative meaning, mainly formulated by Marx. As
time went by, Marxist philosophy was subject to several revisions
by intellectuals such as Gramsci and Althusser, who assigned
neutral or positive meanings to ideology. Gramsci’s revisionist
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Marxism as well as structuralism and postmodernism have a
descriptive-positive character that cancels out the relevance of
social praxis and ends up legitimising ideological schemes in
force at a given moment.
In the field of Law, no autonomous theories have been
developed about the interaction between ideology and Law, but
rather processes of application of broader macro-philosophical
theories have been generated, which, not being part of a coherent
scheme of thought, are insufficient or directly contradictory
to the analysis of Law as an autonomous object of study. The
conceptualisations of ideology formulated by
iusnaturalism
,
positivism, democratic and cultural theories present inadequate
analyses that operate on levels that do not correspond to the
objective reality of the legal phenomenon, Given this, these
theorisations lead to the extinction of the scientific study of
law and its replacement by linguistics, psychoanalysis, culture
or semantics applied to the legal field, because these types
of formulations do not previously delimit the nature of the
ideological phenomenon according to a philosophical scheme
that is congruent in its totality.
Theories formulated about the properties of ideology
are informed by deeper philosophical considerations and
assumptions concerning epistemology, ethics, logic, and
linguistics, which in turn have considerable implications for
political, ethical, and indeed legal theory.
Henri Lefebvre’s philosophical theses possess great
epistemological richness since they overcome some excessively
static aspects of orthodox Marxist theory by integrating various
components of social material interaction, which do not only
refer to the economic field. Precisely based on the assumptions
pointed out by the French philosopher, it is possible to
construct a novel legal theory concerning the identification
of the mechanisms of manifestation of ideology, based on the
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determination of the historical-material properties of the state
and law.
The links between ideology and law can be identified
cognitively by a neutral agent and operate both in the
institutionalisation of a scheme of justice that tends to be
positivised and in the deformation of the axiomatic properties
of a legal system in force; these manifestations can be seen
more clearly concerning the jurisdictional function of judges,
as they are at the institutional apex of law. Furthermore, the
incorporation of ideological elements in judgments is present
in their logical-argumentative articulation processes and can be
evidenced-based on a logical analysis of the components of a
normative system. Then, the inclusion of ideological burdens
in judicial sentences is considered reprehensible not because it
contravenes supra-legal values (iusnaturalism and democratic
theories) but insofar as it represents a violation of the axiomatic
and normative structure of a legal system in force.
The tools for the purification of ideological judgments
must be positivised in the legal system itself to guarantee their
effectiveness and practical viability. Based on the theoretical
analysis, the most important tools are of a procedural and
social nature. Among the mechanisms of a procedural nature,
the importance of systems that facilitate the control of legality
(appeals for cassation) and constitutionality (control of
constitutionality) stands out. In order not to be reduced to
mechanical exercises referring to the control of the application
of norms, these means must be based on the development -
whether by way of jurisprudence or law - of theoretical schemes
that establish standards of neutral and logical application of
norms, taking as a basis the materialist study of the ideological
phenomenon and legal institutions. On the other hand, the
recognition of certain judicial practices - in the sense proposed
by Hart - referring to decisional neutrality, would guarantee the
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purification of judgments with ideological charges in the judges’
intellectual sphere; these practices of recognition must be built
both within the judicial sphere and through the institutional
platform of the state and the constitutional organisation of its
functions.
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Received:
07/09/2020
Accepted:
22/06/2022
Ramiro Andrés Urgilés Córdova:
Independent Legal
Researcher.
Email:
ramiro.urgiles@ucuenca.edu.ec
City:
Cuenca
Country:
Ecuador
ORCID:
https://orcid.org/0000-0002-3331-0692