Judicial function in constitutional domains: a theoretical framework for assessing judicial reasoning in Constitutional Courts in South America

Abstract

Constitutional courts are inherently political, but when assessing their judicial decisions, the majority of the legal community in South America tends to adopt a narrow, normative, and legalistic perspective, lacking empirical and interdisciplinary approaches. In this paper, we report some elements to surpass this mainstream perspective by departing from the rational acceptability thesis. The scope of the work is limited to a descriptive and normative sphere, and the method used is qualitative.

Keywords

• judicial function
• discovery
• justification
• constitutional reasoning
• judicial reasoning.