ENGLISH DOCTRINE OF JUDICIAL ARGUMENT AND THE USE OF COMPARATIVE JURISPRUDENCE

Abstract

In the current conditions of development of the doctrine and practice of constitutionalism, objectified by the processes of constitutional modernization and transformation of constitutional and legal institutions, a comprehensive study of the validity of judicial decisions is one of the primary tasks for both the doctrine of constitutional law and legal theory. The task of administering justice in accordance with the law may sometimes require, in particular, that those value judgments inherent in the constitutional order, but not expressed or only imperfectly expressed in the most recent legal texts, be revealed and fulfilled in actual decisions – in the process of justifying the relevant decision. At present, it is necessary to study legal reasoning scientifically in its form, the main analysis being the substantive content of the argument, with respect for morality, given the constant challenges in constitutional proceedings and the requirement of critical thinking on the part of the judge in the application of social justice. Court rulings are the most important outcome in the justice system. Interest in the research behind these decisions has grown considerably. It is mainly the theories of legal reasoning that have been developed since the second half of the 20th century that venture into the study of judicial reasoning. In these theories, the distinction between an easy case and a hard case is fundamental. In this paper, we consider this distinction, but a different type of case. The judge, far from being logical and applying so-called ‘practical reason’, is in fact a fallible, limited human being, and above all aware of the violation not only of legal values but also of moral values in our societies.