This article asserts that new-constitutional thought, both in its more sophisticated theory (e.g., Alexy and Dworkin) as in its receptions in Spain, Italy, and Latin America, has been built on the grounds of a fictitious model of the judge. In an analogy to the well-known allegory of the rational legislator written by Carlos Santiago Nino, the article reviews the main attributes of this model: persuasiveness and correctness in reasoning, non-delegated political representation, the capacity to rebuild the legal system consistency, interpretation of the community´s moral sentiments, and impartiality. Such attributes would provide normative sustain to an increasingly active role of constitutional courts in the public sphere. Although fictions are common in political and legal theory, the article sustains that a naïve reception of that theoretical scaffolding can imperil democratic regime and the rule of law.
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