Vol 19 No 1 (2019)
Justificación jurídica, permisos y discreción judicial

Two remarks on legal justification

Jorge Rodriguez
Published July 8, 2019
Keywords
  • legal reasoning,
  • abnormal cases,
  • judgements of acquittal,
  • moral objectivism

Abstract

Traditionally, it has been claimed that legal reasoning purporting to show that a legal decision is justified in accordance with the existing law can be reconstructed as a logical inference in which, on the basis of two types of premises -normative and factual- a conclusion can be derived that states that certain legal consequences are applicable to a particular case. This basic idea has been disputed from different points of view. In this paper only two types of criticism will be considered: the first linked to the very structure of judicial reasoning, which would indicate that, since legal norms only regulate normal cases and not those in which they would produce unjust results, the determination whether any rule is applicable to any case would require a moral evaluation. Secondly, and though the previous observation does not establish a necessary connection between legal reasoning and moral reasoning, it seems unquestionable that in a strong sense of justification that requires starting from justified premises, the evaluation of the correctness of the normative premise in judicial reasoning can refer to a moral evaluation. What in such a case would have to be determined is whether, as some theorists assume, that evaluation requires commitment to some form of moral objectivism.