The Rule of the Courts

Francisco Balaguer Callejón

the law by judges and courts operated as a mere automatic mechanism because there was only one reason: the one contained in the law. Thus, there is no possibility of adjusting this mechanism, no possibility of interpreting the law in different ways, because even when there are doubts, it must be the legislator who interprets the law. The courts had no role in guaranteeing the rule of law and fundamental rights other than that of mere notaries of the law. This cultural perception will change with the Constitutional State, which opens to pluralism. A very different vision then emerges of the process of applying the law by judges and courts, placing them at the centre of a task of interpreting, arguing, and justifying their decisions to achieve social consensus on them and thus maintain and develop their authority. A pluralistic view of interpretation arises linked to the development of pluralism, because pluralism is not only political but also permeates the judicial sphere and the very conception of law. New legal theories emerge that tend to replace the idea of a unique, universal reason with a truth that must be investigated and demonstrated in the process of applying the law. As we have indicated, the formal logical treatment of law, with its aim of knowing the truth, evolves toward a dialectical approach, intended to justify the decision. The focus of this conception of law then shifts from the content of the decision to the process of argumentation, through which its recipients must be convinced. Thus, arise theories of argumentation, the new rhetoric, and topical reasoning. Theories that incorporate pluralism into the process of applying the law. It is no longer a matter of the judge being able to decide by establishing the unique pre-existing truth in the parliamentary law and applying it unconditionally as if it were a mathematical process. The focus is now on convincing society through argumentation. This cultural shift stemming from pluralism can also incorporate Peter Häberle’s theory of the open society of constitutional interpreters 43 . It’s not just that there is a pluralism of methods of interpretation and argumentation, but that the very idea of democracy expands into “legal democracy,” meaning that society, each of us, are interpreters of the Constitution and can contribute

73

43 V. supra , footnote 35.