Argument or demonstration in the judicial decision? A deep look into the constitutional state

Abstract

The text analyses the problem of correct judicial decision taking into account two lines of discussion: first, the differentiation around arguing and
demonstrating, and second, the judge’s role to obtain that correction in
the Constitutional State. In order to orient the solution of the problem a
theoretical frame will be reviewed. With this framework we try to sustain
the thesis according to which the argumentation in the judicial decisions,
and not the demonstration, is the one that assures that the judge’s role is
developed according to the postulates of the constitutional States. In this
sense, the text will show the relations between the Habermasian theory of
Right and Perelman’s theory of the juridical argumentation.