Legal argumentation and summer of 1996

18/06/2018

It was the summer of 1996, Lima was as usual hot and humid. I had just arrived from Brussels where I had studied, among other very innovative courses of the European master in legal theory, the latest shout of fashion in the cold and old continent: theories of legal argumentation.

Years before, in Lima I had been trained in the Pontifical Catholic University of Peru in the framework of legal positivism, understanding from the first courses led by professor Marcial Rubio Correa, that the law was a set of positive rules, within the framework of a general order. And with professor Fernando de Trazegnies (curiously traveling through Belgium I went through the town whose name corresponds to that of his family), that the right could be understood not only from a positivist perspective, but also from a vision of natural law (rights were set by divinity, they are prior and superior to positive law) or from a Marxist perspective (the law only reflects the power of the owners of the means of production in capitalist society).

But, in the hands of professors Manuel Atienza, Francois Ost and other philosophers, I learned that law could be seen as a field of argumentation (Atienza) or as a field of play (Ost). These views were much more dynamic and penetrating to study a field, that of the jurists, in which there are multiple strategies, moves and objectives. According to the legal argumentation perspective, law is not only what university professors teach or law is not only what congressmen try to legislate in parliaments, The stydy of law must consider how argumentative games operate in the most emblematic field of legal practice: the judicial process.

Of course, the object of study of argumentation theories are the processes by which the judges, the stellar actors of the series, reason the cases and make binding decisions.

It was still hot in Lima when I received the call from Javier de Belaúnde, jurist and friend who invited me to do research for the Academy of the Judiciary. I had told him before that my thesis in Brussels was about judicial ideology, and I proposed to do an investigation on how Peruvian judges conceptualized law. The investigative adventure that I started with the collaboration of Gloria Viacava and Smila Zevallos, under the advice of the future president of the Supreme Court, at the time judge, César San Martín, saw the editorial light the following year under the name "Diagnosis of Peruvian Judicial Culture", a first publication by the Academy.

In the framework of this investigation I noticed the modest argumentative level of Peruvian judges, and I proposed to the board of directors to organize a course that I pompously baptized as "legal reasoning". I organized the objectives, the syllabus and the methodology, but I did not find, except the publication of 1990 that Atienza had done for the Center for Constitutional Studies of Madrid ("The reasons of Law, theories of legal argumentation") no other publication in Spanish on these subjects (we had to translate original publications in English and French). 

But we insist. With the passage of time (20 years are nothing as the song says?) The course has matured, has been updated, there are many more professors and materials available (at first there were none). The course has gone from being based on a philosophical perspective to becoming a much more methodical training based on the analysis of Peruvian cases. It has also spread, it has gone from the Academy of the Judiciary to the Public Prosecutor's Office, the entire judicial system, many administrative courts and even universities.

Only time will tell if the heat of the summer of 1996 generated a good idea or not.