The notion of legal reasoning shows a great attention from the contemporary legal thinking. However, I suggest that instead of it we should go to the notion of legal discourse. This differs from the previous because it revolves around the premise that there is an immanent rationality of law. Of course, does not deny that possibility, but maintains its existence as it is, a question that must be answered in light of the legal materials available in a specific area. Thus, it may be possible to speak of the immanent rationality of the law on freedom of American speech, or of immanent rationality of the Chilean labor law, but affirm the existence of a rationality inherent in the legal, just like that, is to try to go through a trial analytical which is nothing synthetic.
The notion of speech suggests, rightly in my view, that law is constituted from a set of assertions made effectively considered in its entirety. The discourse is a totality, a vision of things positively established. At the same time, all discourse is constrained by certain rules, which acquires its continuity. In the case of legal discourse, these rules have to do mainly with reference to certain materials that are considered binding and the establishment of certain authorities called upon to apply in various ways such materials.
The notion of legal discourse also points to classify some the premises of the legal phenomenon as belonging to the cultural dimension. The rule of law in this sense, is merely a cultural expression, a way of life like many others, one whose horizon is virtually coterminous with modernity, but which, with the features you currently ascribe to the rule of law - does not go beyond the historical and geographical boundaries that surround it.
This gives us the framework to understand the statement of one who, as Andres Bello, argues that it should "be heard in the sanctuary of justice other voices than those uttered by the right before the cases, the judges gave safe rules for their conduct. "If the judges could act otherwise" not by the laws reglarian decisions, but by the individual opinions of judges. "Therefore, concludes Bello, the judge is" slave lei. "
Bello These claims are held on the premise that blind obedience to the law, the judge may reach unambiguous answers that avoid the need to exercise their discretion . This, if taken as a descriptive theory of adjudication and therefore as a condition of possibility of legal reasoning is clearly wrong.
However, we can understand the words Bello as a founding myth Chilean legal culture, which shapes our territory to a powerful idea that in modernity has gone ages and territories and has been embodied in the notion of the autonomy of law. The autonomy of law, as the quintessence of modern legal culture, is a specific form of understanding the relationship between knowledge and power, between auctoritas and potestas between legal science and the judiciary. According to this true belief structure is the autonomy of law, the practice of awarding state function is justified by the unique ability of professionals the right to resolve disputes socially relevant by virtue of its theoretical and practical training, which is estimated them access to pre-existing responses and equipped with its own rationality. Are not they, therefore, solvers: they are mere oracles, mediums in a transcendental entity such as the legality.
Now, as a founding myth of legal practice, the ideal of the autonomy of law is insufficient. Even more, I argue that does not account for all of the modern legal culture. This, because in modernity the relationship between knowledge and power has taken other forms, other than epistemic elitism recently reviewed. Beside that, there are ideals of helpfulness they put on the shoulders of those who enjoy a good of others lack of responsibility thereby benefiting the whole society. The most prestigious design their ideal in contemporary political philosophy, is the difference principle of Rawls.
The tension between a legal culture of autonomy and a legal culture of helpfulness is much more strongly evident in this area of \u200b\u200blaw that deals with community self-government, constitutional law, since the dynamics of exclusion and inclusion that trigger an impact on cases in which the claim of expertise in the legal profession walks on less firm ground. This loose soil, of course, can be solidified and the claim of expertise and therefore be enhanced autonomy. That's what bogan currents achieved by juridification of the Constitution, from the side that is, either from the Chilean theories the normative force of the Constitution associated with conservative views of law, or from the neoconstitutionalism While European liberal trend.
The dynamics of power / knowledge and its impact on the inclusiveness or exclusiveness of public discourse is family affair to contemporary theoretical reflection. Paul Piccone and Gary Ulman wrote in 2002 in the journal Telos ( here you can find the full text ) the following, concerning the exclusion of Carl Schmitt often by liberal academia:
Thus, otherness Appears Whenever, It Must Be Persuaded Back Into Either full sameness summarily liquidated or else as evil. Despit all the rhetoric about Openness through 'undistorted communication' and interminable dialogue, discussions and participation in Deliberations is conditional on the prior Concerning Acceptance of unchallengeable rules of formal rationality and mode of discourse Which Automatically exclude All but Those Intellectuals and Professionals Fully Initiated Into the prevailing jargon.
This point also raises Iris Marion Young in his book Justice and the politics of difference and that has to do with the relationship between knowledge and power issue, in turn, also crosses the production Foucault .
How does the world of law, and within that constitutionalism, this questioning? Indeed, the autonomy of law cultural premise of legal practice inevitably performs that function modes of discourse to the exclusion of 'non-professional' and yet is not kinds of rule and the autonomy of law as well, as this can throw the baby down the drain, as the Americans say. In other words, the autonomy of law is a necessary component of any legal practice that aims to create a unifying language, and therefore the abolition of the ideal of the autonomy of law on behalf of the quickly canceled including the very possibility of inclusion.
I therefore believe that the autonomy of law as an ideal that explains why living under the rule of law is good, should be complemented with the ideal capacity right to respond to the society in which there ; ideal I think you are in some of the best moments of legal practice, those in which-as with the Constitutional Court ruling of 1985 on the need for an electoral tribunal during the 1988 plebiscite - the right ensure social legitimacy for himself. Legal and constitutional practice inclusive should be able to identify and draw attention to this function 'responsive. "
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