A non-discursive moment in legal reasoning, an aristotelian approach

Abstract

In a first stage, this paper tries to show that in practical reasoning there is at least one non-discursive element. Then, it maintains that this element, although it is not discursive, is not irrational. The aim of the legal logic and legal argumentation theories is to try to explain each of the steps that must be taken by the person who reasons in the field of Law. In the formation and construction of the foundations of a decision there are aspects where there is no discourse, but rather a finding of the solution or the necessary elements to reach a solution. Unfortunately, all this has been characterized in our usual language as intuition, empathy or instinct. Therefore, we will try to show that such non-discursive elements are maximally rational. That is to say, far from expressing the inexpressible as irrational and incommunicable, they paradoxically appear as moments where reason presides the access to reality in an accurate and accurate manner.