THE REASONS OF LAW FROM A GENDER PERSPECTIVE

Abstract

This article aims to discuss the reasoning of law, within the framework of the justification of judicial decisions, from a gender perspective. The structure of the analysis starts, firstly, from the enquiry on how judges decide, suggesting that legal argumentation puts into crisis the application of law. Secondly, it investigates the possibility of constructing a gender perspective as a methodological enunciation of legal reasoning procedure in the judicial decision. The field of study is circumscribed to the analysis of sentences on domestic violence in cases of intimate relationships. From this it is possible to give evidence that the decision-making process reveals, essentially, a formalistic vision of the application of the law. It is considered that the appreciation of factual situations and the material interpretation of the rule of law may be affected by prejudices resulting from the social construction of gender, which may lead to unfair decisions. It is suggested that the enunciation of gender constitutes a methodological instrument of justification of the sentence and that it operates in all the phases of the reasoning from the examination of the facts to the application of the law.