variaciones sobre temas de carlos alchourrón y eugenio bulygin. derrotabilidad, lagunas axiológicas e interpretación

The paper aims at analysing the relationships between defeasibility of norms and axiological gaps from the standpoint of a skeptical theory of legal interpretation. A number of examples show that the two concepts denote phenomena, which arise along the process of interpretation, and depend on the interpretive strategies of jurists. The analysis of such examples allows for a number of conclusions, such as the following. 1. Defeasibility is not an objective property of norms, prior to interpretation; on the contrary, it is one of the possible consequences of interpretation - it is the result of a particular interpretive act (viz., a non-literal, restrictive interpretation through which implicit exceptions are created). 2. By defeating a norm, interpreters exclude from its domain of application certain facts, (which according to a different interpretation would be included). Whenever such facts are not regulated by other valid norms, there is a gap in the legal system. Thus, the defeat produces a gap. 3. Such a gap may be considered either normative or axiological from different interpretive standpoints. This means that one cannot distinguish between normative and axiological gaps independently of interpretation. As a consequence, even normative gaps depend on interpretation: according to a certain interpretation, a normative gap exists, while according to a different interpretation this gap disappears, does not exist as a normative gap, and, therefore, it converts itself in axiological 4. Defeasibility of norms and axiological gaps do not depend on the existence of principles (as many author maintained), they simply depend on interpreters’ evaluations, which often appear under the clothes of legal theories or dogmatic theses built up by jurists before and independently of the interpretation of any particular legal text.

• 主要作者: Guastini, Riccardo (author)
• 格式: article
• 语言: spa
• 出版: 2020
• 主题: Derrotabilidad de las normas; lagunas axiológicas; teoría realista de la interpretación; Defeasibility of norms; axiological gaps; the sceptical theory of legal interpretation
• 在线阅读: https://revistadigital.uce.edu.ec/index.php/CAP/article/view/2499