In the species, the argumentation from the legal point of view, applied to the administration of justice, is about the Reasoning and Justifications of the Judge to make their decisions in the trials in particular.
It has its origin in rhetoric, which is the science of being able to argue, related at the same time to oratory, which is itself the art of speaking eloquently and persuading, therefore for a judge to base their resolutions, which must be duly grounded and motivated, the motivation is the logical-legal arguments applied to make a clear, precise and congruent resolution with the proposals of the parties in the facts of the claim and answer, as well as the application of the law by the judge in the sentence that the trial in particular falls.
As antecedent we have that the way of judging or imparting justice in the course of time has had different meanings or modalities, based on the different stages of law, the first antecedent being The Absolutist State: which originates with the belief that kings, which, due to their “divine” origin, designated the judges of that time, they also believed they had a certain divinity due to the origin of their appointment, so their determinations were unassailable but without any legal basis, leaving the subject at the expense of the “divine” decision without proving his guilt or innocence, so that this system, far from being just or divine, was on many occasions arbitrary and unfair, apart from legal reality.
Later, in the stage of the French, English and North American revolution, the so-called Rule of Law was created: with which the era of codification was born, giving birth to the system known as the Grammar System, which is nothing else to apply the right based on what the codes stipulate, that is, To Go To The Letter Without Further Interpretation, so this system was also unfair on several occasions for not arguing or interpreting the legal precept with the crime or matter in particular, since the most similar was the one that was applied.
The grammatical criterion is about the Language Used by the Judge in its resolutions, applied in two rigid variants that are from the Semantic point of view, by means of which the judge is limited only to Unravel what the norm expresses, and Contrary, only when in particular the norm allows it.
Some time later, with the creation of the Constitutional Court of Austria, the Constitutional State of Law was born, based on the Hierarchical system, (constitution, laws, jurisprudence, etc.), applying at this stage the Systematic criterion, from the legal aspect it refers to the normative context or body of laws in which the statement is inserted (call the crime and / or legal figure in particular statement).
The Systematic Criterion also has methods or particularities by which it is developed to reach its objective, these being:
- To Material Venues: which is nothing other than the physical location of the standard, (Topographic Location of the Standard). A Rubrica: because all legal orders are located in chapters, titles, articles, etc. Systematic In Strict Sense: that as a result of its ordering, the chapters, titles, articles, etc. are duly located within the legal context. A Cohaerentia: refers to the fact that two mutually incompatible provisions cannot operate within the same legal system as they are contradictory. No Redundancy: the attribution to a normative statement of a meaning that has been attributed to another normative statement is excluded, they are not repetitive in the same legal order.
Finally, in the 2nd world war, derived from war crimes, the Social State of Law arises governed under the Functional Interpretation Criterion, based on the purposes of the norm, that is, the will of the legislator, based on the purposes and values of the standard, radically changing to the criteria previously applied and that are duly described in the preceding paragraphs.
This criterion is based on the following principles:
- Teleological: It refers itself to interpreting the statement according to its purpose (Purpose of the Standard). Historical: These are the criteria applied by other legislators on a certain norm, which must be updated at the time it is applied (Reforms). Psychological: it is nothing more than the statement of motives of the legislator to propose a certain norm or of the judge in which it is found because of its determination (which the legislator or judge thought). Pragmatic: If the conditions derived from a certain type of interpretation are favorable or unfavorable. Principles: Based on Constitutional principles, general principle of law, etc. Absurd Network:Based on this, it allows us to reject an interpretation of a normative document from among those theoretically possible due to the absurd consequences to which it leads us. Authority: Based on Jurisprudence.
Below we will see an explanatory table that details the similarities that exist between a rhetorical discourse and sentences based on legal argumentation.
| RHETORIC SPEECH | JUDGMENTS |
| EXHORD | SEEN |
| NARRATION | RESULTS |
| ARGUMENTATION AND REBUTTAL | CONSIDERING |
| CONCLUSION | RESOLUTION POINTS |
- The methods of legal argumentation. In general, all authorities are obliged in terms of articles 14 and 16 of the Political Constitution of the United Mexican States, to justify their resolutions, absolutely all of them, none can escape the principles of legality and legal security, which is why, if the judges have to present arguments tending to justify or explain why they decided in one way or another and thereby convince others. The bodies in charge of resolving judicial controversies, the only way they can justify their existence is by imparting a government justice when solving specific cases, based on the application of the law, when this is sufficient to pass a judgment in accordance with the law, however, if a different interpretation has to be used,the arguments that materialize in the sentences, demand a greater intellectual effort, because the conviction of the result of the decision taken is not expressly in the law applicable to the case, but rather, it is found in the discovery that the judge makes of the content of origin, purpose, social environment, etc., of the law.
Criticism and conclusion:
In the species, all resolutions must include the principles of legality and legal security, so that they do not violate the individual guarantees of the governed, therefore, argumentation from the legal point of view plays a role. fundamental in the administration of justice, since based on this, which are nothing more than the Reasoning and Justifications of the Judge to make their decisions in the trials in particular, they must be consistent and congruent with the facts and the law applied in is.
1 Weston, Anthony, the keys to argumentation, 9th edition, Barcelona, 2004, pp. 13-15. Giving arguments means offering a set of reasons or evidence to support a conclusion.
2 Tondopó, Carlos, Theory and Practice of the Indirect Amparo Process in Administrative Matters, 1st Edition, Mexico, 2008, Edit. Porrúa.
