RULES AND PRINCIPLES. AN INITIAL APPROACH TO LUIGI FERRAJOLI'S THESIS
DOI:
https://doi.org/10.21501/23394536.2463Keywords:
Rules, Principles, Weighting, Positivism, Constitutional rights.Abstract
In the article, the concepts of rules and principles are related, their differences and similarities. At the same time, the criticism developed by Luigi Ferrajoli about the excessive use of principles in the judge rulings is described. As a consequence, because of the open texture that characterizes them and their own nature, a disregard of the constitutional warranties can eventually occur as the subjective position of the judge can prevail in sentencing over what is established in the law, beliefs that get value through the use of the weighting. The methodology for the construction of this text was theoretical, through documentary revision, with the purpose of making a minority stance in the legal community to be known. Even if the starting point for this documentary revision is the work of Ferrajoli, methodological and theoretical accuracy have not been harmed, as there are other authors who support this stance. As corollary, it is referred that the rules and principles are not as deeply different as it has been believed and that the weighting as a method to apply law has a more limited reach than what is commonly considered.Downloads
References
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