Abstract

ETCHEYERRY, JUAN B.. THE RELEVANCE OF JUDICIAL DETERMINATION AND THE THESIS OF THE FAIREST ANSWER. Díkaion [online]. 2015, vol.24, n.1, pp.66-85. ISSN 0120-8942.  https://doi.org/10.5294/dika.2015.24.1.4.

This study is an attempt to defend the notion of the relevance of judicial determination of the law in light of the thesis that there is only one fair answer to every case. An explanation is given on the role of law and morality in the regulation of social life that recognizes the importance of specific legal and judicial findings. It is also maintained that there may be cases in which judges are faced with more than one reasonable option for an answer. There are two reasons for this: i) the disparity that exists between the generality of legal principles and legal-positive norms, and the particular nature of the cases to which those norms would have to be applied; and ii) the acquiescence of reason to so many good things and, subsequently, acquiescence of the will to want them. In turn, it is argued the perplexity judges can experience when faced with the possibility of having to choose from more than one fair option does not immobilize them, because they are able to: a) take advantage of their affective inclinations for one of the fair options; or b) give particular consideration to one aspect of the various options from which they must choose.

Keywords : Judicial determination of the law; single correct answer; theories on judicial decision based on virtues; judicial discretion.

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