Debate sobre la utilidad de la Metodología Jurídica

Una reconstrucción crítica de las actuales corrientes metodológicas en la teoría del derecho

Abstract

This article is divided into two parts: the first part explores some of the dominant principles recognized today in the field of Legal Methodology, and describes three main approaches: the first approach (regarded as “too optimistic”) claims that legal methods are essential to obtain equitable legal conclusions. The second approach (considered “less optimistic”) states that these methods –even though they do not help one to find the “one right answer”– are useful in forming more coherent and rational arguments. Finally, the third approach (regarded as “not optimistic at all”) warns that legal methods rarely have a function beyond the mere legitimation of previously held decisions. The second part of the essay defends the central thesis that Legal Methodology has basically a symbolic function. It serves to persuade people –including jurists– that law is genuinely objective, rational, and just. In this sense, Legal Methodology acts as a form of consolation (a source of spiritual comfort!). Finally, this article presents the so-called “people scepticism” as a heuristic tool to interpret the legal and social world.