Resumo

LUQUE, Pau. Rule of Law and Recalcitrant Cases. Probl. anu. filos. teor. derecho [online]. 2020, n.14, pp.217-246.  Epub 05-Mar-2021. ISSN 2448-7937.  https://doi.org/10.22201/iij.24487937e.2020.14.14910.

According to a sophisticated version of the Rule of Law, legal rules should be general in aiming at regulating classes of cases instead of concrete situations. The possibility to foresee which legal decisions will be reached depends on the general character of norms. However, along with the predictability and certainty it provides, the generality of rules can have a negative reverse side: when applied to certain particular circumstances -what seemed to function satisfactorily in abstract- provides inadmissible solutions according to some conception of justice. Those cases are known as recalcitrant cases. In this article, I suggest a way of understanding the practical legal reasoning which mitigates the general rules’ negative reverse side while preserving an important part of the certainty they provide.

Palavras-chave : Rule of Law; Legal Decision; Recalcitrant Cases; Legal Reasoning.

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