"shows how the texts better than common sense"
Commandment of the Decalogue VIII Angel Osorio.
Marco J. Carbajal Carbajal *
More than one of the readers of these lines - a practicing lawyer, student or judge, must have wondered ever If common sense plays a role in the life of the law and especially in solving practical problems? . And if the answer is positive, the second question that arises is: How could translate it into their arguments of the defense or judicial resolution, respectively ? . That is, if it does count as a pure and naked intuition that springs from the depths of his being, or perhaps just in case there is any institution which is embodied.
own brilliance with one of the greatest litigators of the current time, as is the Italian Professor Michel Taruffo, this indicates that the analysis of the problem concerns the role of common sense, experience and of science in the judge's reasoning can lead to a finding that may seem at the same time amazing and banal: that the judge's reasoning is largely governed by rules or is determined by criteria or legal factors. It should then realize the fact that the judge's reasoning is inevitably immersed in common sense, that is, along with the right-an essential context for it. Although it happens frequently, "says the professor, is a mistake of perspective, remove the judge's reasoning in this context, disregarding him to see it as a simple logical scheme put in a vacuum. This, therefore, depends largely on common sense is context-laden and deeply Situated in the culture and the experience of place and time of the decision. You can even say with good reason that the common sense is everywhere in the judge's reasoning is not only his background as the gold leaf of medieval illustrations, but is also an important part of the material of which Justice is served, and provides a repertoire of argumentative forms and interpretative patterns that he uses for his reasoning. However, as we know, the notion of common sense is so vague and indefinite and vague. It is very difficult to define its many connotations even philosophical, sociological and even anthropological, so it is not possible to give a complete definition on the subject.
Nevertheless, citing Van Zandt says that common sense is a socially produced set of information, including descriptive and evaluative elements commonly considered valid and acceptable in a social context.
Thus, there is no doubt that one of the institutions that best embody the common sense in the area of \u200b\u200bprocedural law, is obviously that of the maxims of experience or rules of life.
Now if this is so, the question "What is meant by peak experience or rules of life ?. This figure is expressly regulated in Article 281 of the Civil Procedure Code, Chapter VIII of Title VIII, section three, rarely used as the argument of defense lawyers in the performance or as the basis of judgments by the judge, was the subject of one of the best work achieved so far committed for the German professor Fredrich Stein, who in 1893 published a study entitled superb "Knowledge of the judge" , where in addition to baptize with the name of common sense when it is moved to the area of \u200b\u200bthe test, argues that peak experience or rules of life are definitions or judgments hypothetical or general content, as distinct from the facts that are judged in the process, from experience, but independent of the particular case of the observance of which have been induced, and above these cases, seek to be valid for other new [1] .
Or as noted by Professor Victor de Santo Argentina, the highest of experience are those general principles extracted from observing the behavior of ordinary men, and as such serve as support to establish a presumption, or to carry out assessment of the evidence, thus functioning as rules to clarify the legal sense of the behavior [2] .
From the foregoing, we conclude that the maximum of expertise are general content rules therefore independent case, which are drawn from ordinary observation of human behavior or as usually happens in the reality of the facts, and can be known by anyone (including the judge) of a half mental level of a particular social circle , although some require a technical knowledge by experts for its application to a process or procedure. From there it is said that the rules of experience are not necessarily custodial judge, but also of the parties, witnesses and experts.
Defined roughly what is meant by maxims of experience, it should be noted that these means of proof, in the process, diverse functions, including:
(i) serve to establish a presumption : Ejm. If it is established that a vehicle going over 100 km per hour, the judge may presume even without skill, the speed of the vehicle had an impact on the severity of the accident. In fact, the maximum experience indicates that the more has a vehicle speed is less possible to control, making it the greater the chance of an accident, so if this happens the consequences are more serious;
(ii) ; To assess the evidence : Ejm. If a witness tells a detailed and accurate, the events he witnessed, even though it was 100 yards away, at 6:30 pm and there was no more light, because these circumstances make impossible for him to appreciate with such clarity and detail. In this case the judge, at the stage of assessing the evidence, do not give credit or not to take into account the testimony of the witness in the above purposes, applying the maximum experience which sets the hypothetical view that vision is more or less according to the amount of light and distance which is the observer;
(iii) To determine whether a fact is obvious or not: Ejm. When a person alleges that he received first light effects that sound, in this case the evidence of testing done relieved. Here the maximum experience indicates that the speed of propagation of light is faster than the speed of sound, and
(iv) ; To analyze the accuracy of the facts in evidence and to prevent the assessment of reach absurd conclusions: Ejm. It affects a maximum of the experience when the judge without giving any reasons to justify them, concludes that an old beat to death a young man of 25 years. Here the rule experience teaches that an elder is usually weaker than a girl, so it is almost impossible to dominate or kill shots. For this reason a similar assessment that would not expose the grounds that justify the variation of normal, is flawed and absurd [3] .
No stranger to the importance of these means of proof for the end of the process, the English Supreme Court in one of the most iconic sentences, as is that of March 13, 1993, said:
"If a witness testified both before and afterwards instruction in criminal proceedings, at its discretion, the statement more reliable is the first since the experience shows that honesty and truth in what is ordinarily found in these early manifestations " [4] .
However, although the judges and lawyers, which so often tend to fall back on these noble instruments, this does not mean they can not also be used by other procedural subjects such as parties, witnesses or experts.
For example, the parties and witnesses can also use these tools to show that the person they saw, but could not accurately distinguish the darkness of the place was old, due to walk with difficulty, supported walking on a cane and bent. Here the maximum experience teaches that these conditions characterize a subject that is at that stage of life.
And not to mention the value that they can report to the experts, who based on certain circumstances and by the rules experience can deduct certain consequences. This happens for example when an accident occurs and these bodies which justice dictate that the vehicle was going at excessive speed according to the marks on the floor by rubber tires, since they are long and intense at first and then faint and disappear. Here the rule experience is that a braking leave traces more or less strong or extensive or nonexistent, depending on the vehicle would more or less velocity, respectively.
It noted above, it is clear that the maximum experience or rules of life that are rooted in common sense, play an important role in the life of procedural law thus erecting in ductile instruments in the hands of the judge and practicing lawyer, not only to inform their decisions but also to argue intelligently when there is no full proof, and so away as the musings can be generated in the unaware of the litigants and society in general, an argument that merely seeks to rely on subjective assessments devoid of any technical rigor, such as "I, I, I think, I have for me, etc".
I descended from heaven and said Carnelutti concepts, and seeking the use and application of the maxims of experience to the solution of practical cases that occur in everyday life before our law courts, we that they can throw us in several cases recurrent lights, for example, in those difficult test scenarios where petitions invalid legal act of cancellation of indebtedness and rising mortgage and pubic writing that contains it, held between two elderly people, who have higher education (teacher and retired physician) and living in a residential environment where it is alleged, obviously without a full trial, that how it is possible that this has not happened that way just because the original contract which the obligation arose canceled was granted before a notary in the city of Trujillo and specifically in the area-we refer to the residential living, where the grantors and the grantors of the deed which is invalid requests have gone into the apartment in search of a non-lawyer magistrate. Obviously, in this situation the court may not base its decision on the simple criterion or in its naked intuition on the grounds that "does not believe that this has happened, or that the defendants are crooks, and so on.", ie can not base its decision on a pure subjectivism, but it is precisely in this moment where they come to play an important role in the maxims of experience, which provide new avenues of action in court, persuading them concerning the facts have not occurred as shown formally in reality, for him to be part of the same circle subjects' social process, that is, being a man mentally through their community, can be validly inferred, perhaps not absolute-that due to socioeconomic status of the participants in the legal act which revocation is sought, and other variables such as his advanced age and presence of notaries in the city of Trujillo, it "unlikely" or "unreasonable" that people have resorted to a magistrate non-lawyers within the department to provide such an instrument, especially if one of the defendants, the alleged injured party, has already died and the other co-defendant, the course favored by the document-not appeared in the proceeding for questioning or less exists in the original document file to practice the respective expertise.
In this case, the maximum experience, as Professor De Santo said, as general principles, drawn from the current observation of men's behavior further supports the judge to establish a presumption aimed at clarifying the legal sense behavior.
The hypothesis in the preceding lines clearly drawn from reality, is just a glaring example of the many cases where this noble instrument can be used as evidence to reach a conviction on the facts and that mode estimate or dismiss the complaint, thus putting once further emphasized the importance of the science of law-but-useful science in the service of solving the case studies, taking luster to what the teacher said Alejandro Nieto on one of his last books, which is a celebration against excessive formalism and rigor of the law "should be sought by all means bring the right to experience and common sense , leaving aside the rubble of sterile scholarship, comfortable inertia, pragmatism misleading and false authority authorities have ceased to be " [5] .
[1] Friedrich STEIN, private knowledge of the judge, 2nd. Ed, Themis, Colombia, 1999, p. 27.
[3] Reynaldo BUSTAMANTE ALARCON, The right to prove an essential element of a fair trial, Ara editors, Lima, 2001, pp. 338 to 340.
[4] MONTERO GarcimartÃn Jurisprudence cited by Regina, the object of proof in civil proceedings, Cedecs SL, Barcelona, \u200b\u200b1997, in: Idem, p. 238, Citation No. 111.
[5] Alejandro NIETO GARCIA, Criticism of critical reason, Editorial Trotta, 2007.
