Máximas de la experiencia y prudencia judicial acortando la brecha entre realidad y derecho mediante conceptos jurídicos abiertos

Abstract

This paper aims to justify that the concept of “maxims of experience”, within the context of sound criticism, provides an existential openness that helps to narrow the gap between concrete reality and the law. This is because it creates the conditions for the possibility of the deployment of prudence in a legal setting. The roadmap guiding our research is as follows: we will begin by explaining the normative origin of the concept of “maxims of experience” in Chile and review what national and internatio­nal doctrine have said about its content (i). We will then examine the meaning and scope that Chilean jurisprudence has given to this concept to verify if it is indeed used as a tool for the deployment of prudence in judicial settings (ii). We will conclude by justifying that, although the existential openness provided by open legal concepts demands rigorous hermeneutic control in their application by judges, their inclusion in legal systems is fundamental to bridging the gap between reality and the law (iii).