Interpretation, argumentation and economic analysis of the Law. The encounter of reason with reality

Abstract

In the present article, a study is made of how the inadequate use of the rules of interpretation and argumentation in judicial decisions, namely of the argument by analogy, can cause, from the perspective of the economic analysis of law, an economic impact on the budgets of state entities, which does not satisfy the efficiency purpose that all judicial decisions must have. In order to identify this, it was revised the argument used in a judicial decision issued by Section 2 of the Council of State, filed with the number 11001-03-15-000-2013-00131-00, of the year 2013, which includes a jurisprudential position, established among others in the rulings of guardianship with internal file No. 0176-2004; 7528-05; 4327-2005; 0507-2006; 5200-2005; 6494-05, 0730-07, under which the expression of the national order contained in Decree 1042 of 1978 was rejected in order to extend the recognition of the bonus factor for services rendered to public employees of the territorial order and there were identified the economic consequences that this jurisprudential position had in the budget of Tolima province between the years 2008 and 2015. As a result of the above, it was evidenced that the impact of the recognition of this wage factor on the overall budget of the entity was not significant, but it was in terms of its opportunity cost, while the entity had to stop investing in other significant budget items in order to pay its employees this wage factor. In this way, it is concluded that the decision of Section 2 of the Council of State not only does not satisfy the rules of the argument by analogy, but also, the decision is not efficient in terms of the Pareto optimality criterion.