The interpretative view as the basis of a discreet thesis about judicial discretion

Abstract

On the grounds of Dworkin contributions, considering the inevitability of an interpretative perspective, a discreet conception of judicial discretion is proposed. It is herein accepted the thesis of the relative indeterminacy of language and, specifically, of rules –in the terms suggested by Hart- that, regarding adjudication of Law and with independence of the point of view, determines that the distinction among hard and soft cases is in general possible. Likewise, it is presented a strong and a weak thesis about discretion, taking also into account the internal and external perspective for such purposes. Finally, it will be defended that from an interpretative perspective, which is not possible to avoid and that supposes a task to be executed with vocation of coherency and stability, the discretion is only exceptionally strong, as interpretation of legal texts is carried out arguing about an excluding solution to be adopted and based on the recognized materials of the legal system.