Resumo

CABALLERO ELBERSCI, Pedro. Judicial Decisions: Justification and Rationality. Probl. anu. filos. teor. derecho [online]. 2019, n.13, pp.67-98.  Epub 19-Maio-2020. ISSN 2448-7937.  https://doi.org/10.22201/iij.24487937e.2019.13.13716.

This article begins with the common assumption that modern legal systems require that judicial decisions must be substantiated. Some legal philosophers, starting from this practical requirement, have developed different theoretical proposals to explain the structure and functioning of judicial decisions, but also offer evaluation criteria that enables us to determine if a certain judicial decision is properly justified. In this article, some of these proposals are reconstructed and classified into two different models: the narrow theory of judicial syllogism and the broad theory of judicial syllogism. Secondly, a complicated problem that afflict these models, “the rule following paradox”, is made explicit. I then explore a step forward to overcome this problem and I call it the “Pragmatist Theory of Judicial Decision”. Finally, a plausible way to conceptually accommodate the most relevant theoretical contributions of each of these three models is offered.

Palavras-chave : Judicial Decision; Justification; Rationality; Rules; Following Rules; Normativity.