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Claudina Orunesu (National University of Mar del Plata, Argentina)
Claudina Orunesu graduated as a lawyer from the National University of Mar del Plata (Argentina) and obtained a Ph.D. from the University of Buenos Aires in the field of Philosophy of Law. Dr. Orunesu holds dual appointments at the National University of Mar del Plata, where she is a Full Professor of Methodology of Scientific Research and an Associate Professor of Legal Theory, both within the Faculty of Law. Her work centers on analytic legal philosophy, with a focus on legal epistemology, methods of legal interpretation, and the analysis of constitutional systems.
Among her main contributions to the field are "Positivismo jurídico y sistemas constitucionales" (Marcial Pons, 2012), "Conventionality Control and International Judicial Supremacy: Some Reflections on the Inter-American System of Human Rights" (Revus, 2021), "Reglas constitutivas y mundos constitucionalmente posibles" (co-authored with Jorge Rodríguez, Marcial Pons 2022), along with several articles on legal philosophy and constitutional law published in specialized journals across Latin America and Europe. She is currently serving a four-year term (2022-2026) as Vice President of the Argentinian National Section of the International Association for Philosophy of Law and Social Philosophy.
Rule of Law, Legal Adjudication, and Invisible Law
Claudina Orunesu
It is widely acknowledged that constitutional democracy, embodying the ideals of rights and self-governance, is strongly intertwined with the concept of the Rule of Law. The Rule of Law rests upon the principle that the exercise of power, and the way it produces institutional decisions, must meet certain criteria to prevent its arbitrary use. Although the specific array of requirements and their manifestations within democratic legal frameworks are subject to varied interpretations, a common ground can be identified: even in its most restrictive readings, the Rule of Law necessitates judicial intervention for its enforcement. Moreover, judicial rulings themselves must align with this ideal.
I will first explore the multiplicity of meanings associated with the notion of the Rule of Law, considering the various demands it places on judges and their role within constitutional democracy. This examination aims to identify potential tensions that may obstruct the realization of the Rule of Law or render it unattainable at the adjudication level. Secondly, building on this analysis, I will examine a common practice in judicial decision-making: the use of what may be called “invisible law,” i.e., norms not explicitly promulgated by normative authorities, to adjudicate cases. This analysis will allow us to discern the underlying assumptions and procedures in judicial decision-making that either align with the Rule of Law or require further scrutiny due to their divergence from it.
I will first explore the multiplicity of meanings associated with the notion of the Rule of Law, considering the various demands it places on judges and their role within constitutional democracy. This examination aims to identify potential tensions that may obstruct the realization of the Rule of Law or render it unattainable at the adjudication level. Secondly, building on this analysis, I will examine a common practice in judicial decision-making: the use of what may be called “invisible law,” i.e., norms not explicitly promulgated by normative authorities, to adjudicate cases. This analysis will allow us to discern the underlying assumptions and procedures in judicial decision-making that either align with the Rule of Law or require further scrutiny due to their divergence from it.
Internationale Vereinigung für Rechts- und Wirtschaftsphilosophie /
International Association for Philosophy of Law and Social Philosophy