Abstract

RABBI-BALDI CABANILLAS, Renato. An argumentative and philosophical approach before “hard cases”. Rev. Derecho [online]. 2019, n.19, pp.77-102. ISSN 1510-3714.  https://doi.org/10.22235/rd.v0i19.1775.

Since the end of the Second World War there is a marked decline in the positivist concept of legal science in favor of a rhetorical-topical model that relies on the notion of practical reason inspired by Aristotle. This has put in the center of the scene the argumentative Officium in order to determine the sense of the right and, after that, a broad development of argumentative theories that aspire to rationally justify the judicial decisions. In this work, after pointing out this "Giro", with various assumptions extracted from the court practice - mainly from the jurisprudence of the Argentine Supreme Court -, an analysis of the different types of judges is carried out and the Different complexity of the judicial cases that have to be observed in practice. This classification has a direct impact on how to deal with the increasingly widespread "difficult cases" that are warned not only in heterogeneous societies, but in areas of greater consensus, among other reasons, by the growing development of a State Constitutional law in which fundamental rights play a predominant role, which, when structured as legal principles that have an undoubted moral nature, require a demanding argumentative deployment.

Keywords : argumentation; theory of the argumentation; type of judges and of judicial cases; hard cases; constitutional state of law; juridical principles.

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