The Legal Process. Are the Laws Rational?

Abstract

The author argues that there are rational standards to measure the correctness of law understood as a complex, circular and fluid reality, which is also dependent on a discursive and argumentative conception. To justify and go more deeply in that argument, the article differentiates three interconnected levels of rationality: legal and political theorization, descriptive theorization of the legal system, and legislative theorization. The development of this last has permitted the author to work on a formal but substantive conception which has to prevail in legislation, understood from four levels of rationality: systemic rationality of legislation, rationality of legislator, rationality of the legislative process, and rationality of the legal text as outcome which has to introduce the substance through the form. Moreover, the author maintains that legislation is a special case of general practical discourse, and the conditions for the theory of argumentation can be applied for the same reasons or even those which justify their application to jurisdiction.