Abstract

NAVARRO, Pablo E.. Lagunas, permisos y discreción. Anal. filos. [online]. 2013, vol.33, n.1, pp.103-123. ISSN 1851-9636.

In this paper I analyze the most relevant aspects of the controversy between Juan Carlos Bayón and Eugenio Bulygin about the existence of legal gaps, the so called "principle of prohibition" (i.e., non forbidden actions are permitted) and the scope of judicial discretion. In this debate, Bulygin defends four classical theses advanced in his wellknown book, Normative Systems (Alchourrón and Bulygin 1971): (i) a careful distinction between norms and norm propositions is actually needed in order to solve the problem of legal gaps, (ii) the analytical truth of the weak version of the principle of prohibition cannot guarantee the completeness of legal systems, (iii) the strong version of the principle of prohibition is true only if legal systems are complete, and (iv) judges have discretion in cases of legal gaps. However, Bayón claims that the problem is not the lack of distinction between norms and norm proposition but rather the identification of conclusive legal solutions. Conclusive legal solutions must be distinguished from the prima facie solutions provided by explicitly enacted norms. According to Bayón, the difference between conclusive and prima facie solutions is essential in legally irrelevant cases; in such cases the principle of prohibition plays an essential role because it entails the rejection of judicial discretion. In this paper I claim that the arguments advanced by Bayón fail to provide a sound ground for discarding the classical theses defended by (Alchourrón and) Bulygin.

Keywords : Normative systems; Norms and norm-propositions; Principle of prohibition.

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