The inclusion of moral assessments and indeterminate concepts in positive law as a degrading mechanism of private autonomy (critical legal thought in defense of private autonomy)

Abstract

Positive law has traditionally strived to be objective and based on clear and precise rules. The introduction of moral assessments and indeterminate concepts can increase subjectivity, potentially making the uniform application of the law challenging. The inclusion of moral assessments and indeterminate concepts involves introducing subjective elements that undermine private autonomy by leaving certain aspects open to judicial interpretation, which could lead to arbitrariness or discrimination. Furthermore, the introduction of moral assessments and indeterminate concepts may also create legal uncertainty, as the lack of precise definitions could hinder the prediction of the legal consequences of certain actions. In conclusion, the incorporation of moral assessments and indeterminate concepts in positive law has negative implications for private autonomy, affecting fundamental principles of certainty and justice. Therefore, nowadays, advocating for legal formalism and preventing the degradation of the autonomy of the will by resisting the inclusion of moral assessments and indeterminate concepts in positive law is considered a critical legal perspective. This is a perspective to which we adhere and seek to explain in this work.