Errare humanum est. Item malum argumentum? Una aproximación al error judicial y al deber de fundar y motivar

Abstract

This paper analyzes the relationship between judicial error and the constitutional imperative to ground in law and fact; in particular, it reflects on the legal responsibility of a judge who has erred in their interpretative argumentation. Thus, first, taking into account the regulations, doctrine and jurisprudence of Mexico, it explains judicial error; then, from the perspective of the Theory of Legal Argumentation (TLA), the duty to ground in law and fact is discussed; finally, the paper reflects on the importance of having an argumentative judge, rather than a formalist and political-popular judge, this within the framework of what is known as the “democratization of the Judiciary”.