Abstract

PETZOLD-PERNIA, Hermann. Regarding the Nature of Juridical Methodology. Frónesis [online]. 2008, vol.15, n.1, pp.116-140. ISSN 1315-6268.

Using the titles Methodology of Law or Juridical Epistemology, it is possible to allude to one or other of the two forms as that juridical-philosophical discipline is conceived today: the philosophy or methodology of the science of law and juridical logic. This article proposes to balance the theses formulated during the last decades by renowned jurists, also contributing modest considerations by the author on the subject, especially when analyzing the problem of juridical logic and the debate between philosophers and/or logicians of law related to the nature of the same, because, while some authors affirm that it is possible to speak of juridical logic understood as a study of the results of applying formal logic to juridical reasoning, others sustain that the reasoning characteristic of jurists, whether they act as organs of the state in charge of creating, interpreting and applying norms of positive law, or only as interpreters of the same, such as lawyers who are litigants, consultants or juridical assessors and professors of law, is, on the contrary, the object of study for juridical logic defined as the theory of legal argumentation. In this regard, the article concludes that study of the characteristics of juridical reasoning in general, particularly of the judicial, leads to espousing the second opinion, given that recourse to juridical argumentation techniques and to juridical topoi or specific places of law as intellectual reasons or instruments that make it possible to justify decisions taken by the courts, demonstrates undoubtedly the specifically dialectical (or rhetorical) character of said reasoning.

Keywords : Juridical methodology; juridical logic; argumentation theory; characteristics of juridical reasoning.