Abstract

MORRIS BOLANO, PATRICIA RAQUEL  and  ISAZA GUTIERREZ, JUAN PABLO. Criteria of Rationality in the Application of Law. Rev. Derecho [online]. 2022, n.58, pp.53-79.  Epub Apr 03, 2023. ISSN 0121-8697.  https://doi.org/10.14482/dere.58.321.897.

This research article examines various proposals generated from the philosophy of law and from legal theory, around the requirement of rationality, not only in the regulation of law, but also in the adoption of judicial decisions, showing different perspectives: On one hand, which defends a logicist type of rationality, and, on the other, the one that advocates a non-logicist or argumentative rationality paradigm, under the premise that the law is fundamentally praxis. It also demonstrates how the absence of control of discretionary decisions, issued by the constitutional courts, to solve difficult cases, including those related to fundamental rights, and the objections raised to the proportionality test, merit the structuring criteria of rationality that contribute to mitigate the risks of arbitrariness and to guarantee a balance between material justice, human dignity, and legal security and stability. This research, concerning the criteria of rationality in the application of law, is of a juridical nature, and it has been developed from a qualitative approach through the bibliographic review of theoretical categories supported by authors versed in the subject.

Keywords : Judicial Decision; Rationality; Legal Argumentation; Constitutional Courts.

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