Before indicating which interpretative theories I use—or believe I use—in my practice as a judicial operator, I must briefly explain what I do. I am a judge of a Court of Appeal in a specialized area of our legal system, namely real estate law. In my country, matters related to real property registration, as well as its implications and related incidents, are heard by courts whose jurisdiction is limited to issues concerning immovable property.
At first glance, this might appear to be a mechanical and programmatic task, one that would only allow for a literal interpretation of the rules governing property registration and land surveying. Under that assumption, the only possible interpretative theory would be the “single correct answer” thesis proposed by R. Dworkin, which denies judicial discretion. However, this is not the case.
First, the jurisdiction of the court in which I have worked for years encompasses the entire life of an immovable property, from its legal inception to all subsequent changes and modifications it may undergo. This means that we are responsible for reviewing surveys and ordering the issuance of the initial certificate of title for properties submitted to our jurisdiction, as well as authorizing certain operations subsequent to the first registration. In these types of proceedings, the court verifies compliance with the formal requirements established by law and the regulations governing the matter, in addition to ensuring, as a fundamental element, respect for due process.
Most of the cases mentioned above are non-contentious. They involve a party appearing before the court to request a form of homologation of technical work that has already been reviewed by the technical body of the jurisdiction and now requires a new review—this time from a legal perspective. In such cases, and it is important to reiterate this point, when there is no contradiction between parties, I believe that I apply the interpretative approach proposed by H. Kelsen: a subsumptive application of the law, grounded in strict legal positivism.
Adversarial Proceedings and Hard Cases
However, it so happens that within those same cases brought before the Court, some become adversarial. In this modality, objections are raised to the approval sought, along with requests different from those originally submitted. When this occurs, we are no longer dealing with a procedure that merely requires verification of formal requirements, but rather with an examination of the parties’ positions and the evidence they present in support of their claims.
In these cases—some straightforward, others complex—it is not so simple to apply only the content of legal norms in the manner taught by Kelsen, that is, strict positivism in which law is presented as a coercive order, formed by a system of valid norms (…) whose compliance is mandatory. In this sense, there are aspects that prevent me from being a mere mechanical applier of the law and of real estate principles, particularly when the parties demonstrate legally consolidated situations, established in good faith, that merit protection by the legal system.
Likewise, in the jurisdiction where I exercise my functions, due to its connection with the Property Registry, it is the duty of the courts to safeguard the firmness and integrity of real property registration, ensuring that what is recorded corresponds to the reality of the immovable property. Therefore, in cases where approval of certain operations is requested and an opposition or objection is raised, we are faced with truly difficult cases, for the resolution of which legal doubts or gaps may arise that prevent a correct application of the law.
In such cases, I believe that I adopt an interpretative approach closer to that of H. L. A. Hart, in which law is not reduced solely to rules but also includes principles.
Litigation over Registered Rights
This same approach is applied in litigation concerning registered rights, which are purely adversarial proceedings, also referred to as lawsuits, where opposing parties challenge the content of the registry or seek to defend it against third parties.
I understand that, in most cases, and based on what I explained at the outset, I carry out my judicial functions in accordance with Hart’s thesis in an unconscious manner (as it is not a deliberate choice). As indicated in the study materials of the module, there is a conceptual variety of cases: some are clear cases, in which the legal controversy raised is resolved in advance by the law, and others—referred to as “hard cases”—in which the legal controversy is not resolved by the law, either because it has not been foreseen or because the solution provided by the law makes it possible to rule in favor of either party, since there is no legal reason that clearly prevails over the others and determines a single winning party in the dispute.
This latter situation is very common in the exercise of my judicial function. Clearly, within my work there are very easy cases in which I must simply apply the law. However, there are others that are difficult: the solution is not so clear, nor is it necessarily fair, and the legal solution may fail to align with underlying principles when applied to real-life situations.
Bibliografía
Del Real, Alberto. Teorías actuales de la interpretación y argumentación jurídica. Módulo 3, material del curso, p. 3 y p. 8.
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