Teorías de la prueba y decisiones judiciales constitutivas

A key aspect of Kelsen's work is the development of the constitutive character of the judicial decision. In this paper I critically review three evidentiary theories that argue with this author to reject or accept the constitutive character of evidentiary statements (“it is proven that p”). The issue is a delicate one since the decision is expected to be based on facts that actually occurred, and not on mere discursive creations of the court. I argue that such theories have partially convergent and useful approaches to develop a comprehensive view of what it means to utters a evidentiary statement.