La concreción del interés (superior) del menor a partir de los conceptos jurídicos indeterminadosla ¿idoneidad? De la mediación familiar

Resumo

It is becoming increasingly common for both legislation and legal practitioners and courts to use the “best interests of the child” formula to justify the adoption of a particular measure affecting minors. In this paper, two topics are analyzed: the first one, an analysis, from the theory of law, about the indeterminate legal concepts and the vagueness of the law, paying special attention to the three areas in which indetermination can be presented (in the field of the law, in the interpretation and in the judicial decision). From this theoretical basis, the analysis of the second theme begins, that of the attribution of meaning of an indeterminate juridical concept as it is the “best interest of the minor”. To do this, we will examine three possible areas of individualization of meaning tailored to the specific circumstances of each case such as normative, jurisprudential and doctrinal. Finally, the virtuality offered by family mediation techniques will be analyzed in order to examine their possible suitability with regard to specifying what is the best interest of the child in each case.