Varieties of permission and judicial discretion

An analysis of the Bulygin-Ruiz Manero debate

Abstract

In this paper I deal with the controversy between Bulygin and Ruiz Manero about the role of permissions and the scope of judicial discretion. As it is well-known Bulygin’s theory defends two claims: on the one hand, a sharp distinction between strong and weak permissions is necessary in order to clarify the problem of legal gaps. On the other hand, judicial decisions are discretional in cases of legal gaps. However, Ruiz Manero suggests that the pair ‘strong and weak permission’ should be replaced by a distinction between protected and unprotected permissions. He attempts to show that this last classification is a more appropriate one for clarifying the role of permissions in the context of legal reasoning. Additionally, he claims that judges have no discretion in cases of legal gaps because they must reject legal demands that lack of normative foundation. One of my main aims is to show that Ruiz Manero exaggerates the relevance of the distinction between protected and unprotected permissions. I also try to show that, to some extent, Bulygin’s and Ruiz Manero’s proposals are too radical. So, I defend that a moderate approach could shed some light on the problems of legal gaps and judicial duties.