The New Law, the scepticism about rules and the alternative use of law

Abstract

The author analyzes the theory of the new law just as it is exposed by the distinguished professor Diego Lopez Medina in his works “El Derecho de los Jueces” (the judges´ law) and “La Teoría impura del Derecho” (the impure theory of law). It deals with a radical confrontation between the distinguishing notes of the doctrine defended by Lopez Medina and the position of professor Javier Tamayo Jaramillo, opposite to such audacious proposals that Lopez Medina suggests to introduce in Colombia. For it, the first author is based on the Constitution of 1,991 and the interpretation of values that the Constitutional Court has been applying for some years. At the bottom, it is an ideological confrontation between a total antiformalism, accompanied by a moralistic and axiological theory of the new law and a loss of importance of the written law in force in Colombia (new law), doctrine that Tamayo Jaramillo struggles radically but without ignoring that the law needs to have a pretension of moral correction and that the judge, without abiding literally by the norm, anyway needs to respect the essential minimum of the legal structure in force.