Razonamiento en la sentencia c-579 de 2013 y criterios de razonamiento judicial de la ponderación válida desde la teoría del discurso jurídico de alexy

Abstract

This degree thesis falls within the thematic scope of legal argumentation and focuses on the study of valid judicial reasoning when judges make use of the "weighting" method. The valid judicial reasoning is not limited only to the application of legal norms in a syllogistic way in which the major premise is constituted by the general and abstract norm, the minor premise for the relevant facts of the case, and the conclusion is logically obtained from both (Alexy, 1997, p. 23). Contrary to this, judicial reasoning may also imply the use of the weighting method at the time when there are clashes between principles; method that allows the judge, in certain circumstances, to justify the intervention in the realization of a principle in an equal or greater degree of importance with respect to the realization of the opposite principle (Bernal, 2008, p. 117). It is, then, the subject of legal argumentation and the topic of valid judicial reasoning centered on weighting; theme and topic of the experience of application of principles in socio-political contexts organized in the form of democratic constitutional states (Cuchumbé and Molina, 2013, pp. 240-241). Regarding the topic and topic mentioned, the Theory of legal argumentation (1997) or theory of legal discourse by Robert Alexy represents a significant contribution in relation to the study of the use of weighting in legal reasoning when legal norms are applied. Alexy's legal discourse theory admits the distinction between "rules" and "principles" when applying legal norms. On the one hand, the rules have a “definitive mandates” structure; if the rules are valid, it is obligatory to do exactly what they command and their application implies the use of the "subsumption". And, on the other, the principles have a structure of “optimization mandates”; they order that something be done to the greatest extent legally and factually possible and its application requires the use of weighting (Alexy, 1993, pp. 12-14; Bernal, 2009, pp. 28-29).