Jurisprudential hermeneutics. From the hypotrophy of subjective rights to traffic management from a homogeneous society to another hybrid

Abstract

Our judges are not mere proclaimers of legal rules and, consequently, the process of interpretation and application of rules is not ventilated thanks to a simple syllogism. The reference to values and the increasingly rapid change in social, cultural and economic circumstances have accentuated the dynamism of the legal system, liquidity that has been reflected in perfunctory laws, of poor technical quality, that can hardly cover the different conflicting assumptions and that must be applied in a context marked by a growing and irreversible socio-cultural diversity.  Consequently, at this juncture, the role of the judge is strengthened extraordinarily, which does not mean assigning the judge functions proper to the other powers, even though it is becoming the indispensable complement to the law, subject, of course, to an intense duty to motivate their decisions subject to the strict canons of legal argumentation.  Motivation thus becomes a veritable trial of persuasion, from which hangs the assessment of the ultimate legitimacy of the forms of exercise of the jurisdictional function.  The only answer to achieve a favorable sociological perception of the hermeneutic function entrusted to the high jurisdictional instances lies, therefore, in the cultural expectation that judges should behave independently.  We are therefore before what could be denominated an exercise of "hermeneutic social legitimacy", that is to say, the degree of confidence and social credibility that an institution (the Justice system in this case) deserves among the citizens.

Doi: https://doi.org/10.17398/2695-7728.35.345