UNIVERSIDAD NACIONAL DEL ALTIPLANO

ESCUELA PROFESIONAL DERECHO

THE MOTIVATION AND ARGUMENTATION IN THE

LOGICAL REASONING OF JUDGES

BY: YUBEL ARASSELY ZAPANA CASTRO

SUMMARY

Introducing ourselves in the complex reality of the reasoning of judges,

requires a prior review of the conceptual bases of logical reasoning, also called

legal reasoning. The reason is punctual: we can not adequately construct

constitutional arguments if before we do not have a vision of the systemic concept

of legal order, of the contexts of discovery and justification regarding decisions,

and of internal and external justification.

INTRODUCTION

The discipline of legal reasoning, more commonly called Legal Argumentation in

the comparative academic field, translates a fundamental concern regarding the

work of judges and prosecutors: that the construction of decisions is always

accompanied by: 1) the standards of logic and 2 ) the adequate justification of

arguments.

The logic in judicial reasoning is much more important than its theoretical

presentation of modus ponens and modus tollens, as it is known in the scientific

field, and in reality, it has a major importance: the need for judicial decisions to

follow a sequence of congruence between the major premise, the minor premise

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ESCUELA PROFESIONAL DERECHO

and the conclusion. The latter, we assume with veracity, can not contradict the

reasoning of the major and minor premises; and in turn, the congruence of analysis

of the minor premise - usually a factual issue - can not be manifestly opposed to

the larger premise because only in case of adequacy of the circumstances of fact -

minor premise - to the normative conditions of the rule- Major premise - a

sequence that allows a valid conclusion can be identified.

In the proposed idea, if Article 106 of the Penal Code determines the penalty of

homicide - major premise - and Juan will kill Pedro - minor premise - the adequate

conditions are given to apply a penalty to Juan, due to Pedro's murder.

The aforementioned reasoning appears to be quite simple and it would be

objectionable, however, that many of the judicial cases are not so simple, since

there are countless circumstances, both attenuating and aggravating, that the

judge must assess, and despite this , if a relevant question is configured: the

reasoning of the premises can validly lead to a conclusion, and this is the value of

logic for the discipline of Law in general, that is, that there is a procedural

congruence of valid conclusions.

And notwithstanding the assertion, in the same previous case, what would happen

if one of the formal premises in that logical exercise was false? Well obviously

there would not be a valid conclusion. It could happen, for example, that the norm

had been repealed, or that John had indeed killed Pedro but in self-defense. If the

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ESCUELA PROFESIONAL DERECHO

latter had happened, it would be false to speak of a homicide in the broad sense,

as indicated in article 106 of the Penal Code, from which it would be inferred that

the aforementioned factual premise is false. In these cases, we can no longer

sustain the validity of reasoning and strictly speaking, logic no longer guarantees

the soundness of legal reasoning.1

To reinforce the idea, what would happen if our main premise said: "All the judges

in this town are studious, tenacious and dedicated lawyers", our minor premise:

"Juan is a judge" and our conclusion "Juan is a studious, tenacious judge. and

dedicated "? We would probably follow a subscriptive scheme and affirm that Juan

actually meets those conditions. However, what happens if verified a real test,

John really was a little diligent judge? In such a case, the larger premise would no

longer be true.

We must conclude, then, that logic only guarantees the formal validity of the

premises, that is, its assertions, but does not guarantee the material truth of them.

So, this statement, taken to the constitutional level, would require us to make sure

that the premises are really true and that task is no longer so simple and often

escapes the margin of certainty of logic, which only informs us a formal truth,

based solely on the sense of affirmation, not of verification, of the premises.2

1
ZAVALETA RODRGUEZ Roger. Ob. Cit. Pge. 439 y 440
2 Vid ATIENZA RODRIGUEZ, Manuel. The reasons of law Palestra Editores. 2da edicin. Lima, 2004. p. 53

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ESCUELA PROFESIONAL DERECHO

Well, to this point, from a general point of view, the legal reasoning, to which there

is an adequate sequence of the construction of judicial reasoning, and this aspect

leads us to a second question, already outlined above, which is the appropriate

justification of judicial decisions, which is expressed through arguments.

Let us appreciate, in that sequence of concepts, how important is the logic of the

judges in their reasoning with respect to specific cases, but let us caution, in the

same way that, with regard to the judicial decision, the formal logic alone denotes

insufficiencies that need to be attacked.

CONCLUSIONS

The judge does not act as a mere applicator of the rule, from which he only has to

extract its consequences; before, it must fix the facts, choose the pertinent legal

norm, interpret it and, in light of it, qualify the factual material. The decisions you

make regarding each of these points can affect the final result (the sentence). It

must be ruled out, therefore, the idea that the judge administers justice with the

inputs provided by the legislator, simply comparing the fact with the normative

assumption, because even in the simplest cases, the judge creates a particular

rule for the specific case , given the indeterminacy of the law with respect to that

one.