Judges: officials, activists or mediators?

The interpretive beacons as a contribution to judicial rationality

Abstract

In legal systems there are interpretative openings and limits resulting from the bundling of internal factors, related do the judge, and external, related to the environment. The combination of these factors gives rise to a three-judge model: officials-judges, activists-judges and mediators-judges. Different methodological proposals seek ways to the correct answer or one capable of restricting discretion, with Ronald Dworkin’s argument of principle and
Castanheira Neves’ methodical scheme as affirmative conceptions. With the intention of providing a contribution to the problem of interpretation and its limits, this paper takes the opposite path (negative conception), stipulating assumptions, which if exceeded lead to a legally irrational and, therefore, arbitrary decision. Such presuppositions are the interpretative beacons seen under the objective-temporal and subjective-spatial binomial that can serve as interpretative limit.