Resumen

MARQUISIO AGUIRRE, Ricardo. The Moral Priority of Legislation in a Democratic Rule-of-Law StateA Prioridade Moral da Legislação em um Estado Democrático de Direito. Rev. Fac. Der. [online]. 2025, n.59, e103.  Epub 01-Dic-2025. ISSN 0797-8316.  https://doi.org/10.22187/rfd2025n59a7.

This paper defends the thesis that, in a democratic rule-of-law state, judges have the moral obligation to apply legislation as the primary source of decision. Adopting a normative theoretical strategy, it examines judicial subjection to the law as part of the broader debates on the nature and normativity of law. After addressing the problem of how an artificial normative system such as law can generate moral obligations for judges, the article characterizes the ideal of the democratic rule of law and the specific role that legislative sources play within it. It concludes that, when the rule of law is at the service of democratic authority, the actions of the legislative body must be understood as a delegation of popular sovereignty which, expressed through free and competitive elections, endows it with the authority to resolve matters pertaining to the common good. Consequently, judges bear the moral duty to decide particular cases by applying, whenever clear or ascertainable through interpretation, the criteria expressed in legal rules.

Palabras clave : morality and law; rule of law; judges and democracy; legal normativity..

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