JUDICIAL DIALOGUE AS HERMENEUTICAL DIALOGUE: HUMAN RIGHTS PERSPECTIVE IN THE DIALOGUE BETWEEN HIGH COURTS AND LOCAL JURISDICTION

Abstract

The purpose of this paper is to show that, from a theoretical point of view, the judicial dialogue has the same structure as a hermeneutic dialogue. Nonetheless, in practice, whether because the legislator so provides it or because of a wrong interpretation of the law, the judicial processes are not always followed by the guidelines of the hermeneutic dialogue. The main axis of this exhibition, founded in philosophical hermeneutics, is that, by making restrictions to the human rights contained in certain precedents issued by the Mexican Supreme Court, it tries to avoid that the judges appeal to the judicial dialogue for the effective protection of human rights. It is concluded that the fact that the Court stays away of its own principle is not, by itself, something that necessarily has to do with an “over interpretation” or tyrannical attitudes. Amongst other reasons, the hermeneutic situation by which it is solved is never the same. But, abandoning one approach for another, in response, of course, to the hermeneutic situation, in a correct interpretation is never to violate rights, but to fully comply with the “purpose” of the Supreme Court and of all the judges: the implementation of justice.