The legal argumentation: beyond the syllogism, beyond the system of rules, closer to principles

Abstract

The article explains how in the field of judicial decisions is possible another form of argument beyond the legal syllogism, ie outside the application of standards all or nothing, and therefore outside the link established between premises and conclusion in all valid deductive reasoning. We try, in this way, to place the activity of judges beyond the system of rules and propose to put it within the framework of the principles. To illustrate our work, we will examine, in the relevant issues, the following three sentences of the Civil Chamber of the Supreme Court (11001-02-03-000-2005-00251-01, 25 June 2009), and three sentences of the Colombian Constitutional Court (T-071/12 and T-238/13).