(c) The conditions of Jorge Glas’ detention, sentenced in the same case, led
to measures by the Inter-American Commission 18 which continues to
carefully observe his situation.
(d) The polarization and resulting political struggle in Ecuador is fierce, the
country is deeply divided and the main opposition political party is that
headed by the predecessor of the executive that called the referendum.
58.
For these reasons, to which I add those that I will present below, and despite
the high respect that the opinion of the majority deserves, I will deviate from its
criteria, considering that in this case everything indicates that the State intends to
use this Court to apply its judgment in the framework of an open, ruthless and
extremely crude internal political polarization.
III
CONSEQUENCES OF THE JUDGMENT
III.1. Minimal Legal Realism
59.
For decades I have declared myself decidedly inclined towards legal realism
in the sense that the law must respect the facts of the world's reality. Since there are
several currents of legal thought that are identified as realist (for example, North
American legal realism and others), 19 I allow myself to specify the theoretical
framework from which I proceed to consider the present case.
60.
In post-war Germany, traumatized by the disaster, there was a revival of
natural or supralegal law in all its versions, accusing legal positivism of having given
way to the distortions that had allowed the perversion of law under Nazism.
61.
This revival of all jusnaturalism responded to the healthy intention of limiting
the omnipotence of the legislature and was even accepted in the first sentences of
the brand new Bundesverfassungsgericht. In the midst of these discussions typical
of the times of Adenauer's reconstruction, the most limited, modest and yet
elementary of the invocations to realism was expressed, with the name of logicalreal structures (sachlogischen Strukturen) 20, formulated in opposition to the
Southwestern neo-Kantian position, which started from a theory of knowledge that
limited it to the data of the world ordered by value, that is, to the school that held
that what value did not order, although it belonged to the world, could not be
incorporated to law, which was a cultural science or of the spirit, as opposed to the
empirical or natural sciences. 21
62.
On the contrary, the theory of logical-real structures is based on the
elementary premise that, although the legal order is an order, it is not the only order
in the world, where there are many other orders (physical, natural, social , cultural,
etc.) that belong to the reality or ontology of the Welt (world) and that, of course, is
not chaos.
18
ICHR, Precautionary Measures in favor of Jorge David Glas Espinel in Ecuador, Order 69/2019, of
December 31, 2019, Precautionary Measure No. 1581-18.
19
Cf. Luis Recasens Siches, Panorama del pensamiento jurídico en el siglo XX, (Panorama of Legal
Thought in the Twentieth Century) Mexico, 1963, pp. 619 ff.
In Hans Welzel, Más allá del derecho natural y del positivismo jurídico, (Beyond natural law and
legal positivism)trad. by Ernesto Garzón Valdez, Córdoba, 1962; more broadly in Naturrecht und materiale
Gerechtigkeit, Göttingen, 1962.
20
21
V. Wilhelm Windelband, Geschichte der Philosophie, Berlin, 1916; Heinrich Rickert, Ciencia cultural
y ciencia natural, (Cultural science and natural science), Madrid, 1963.
10
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