On Judicial Discretion in a Constitutional State

Judges cannot be considered as the mouth that pronounces the words of the law anymore. The judge of our time has a necessary discretion as a consequence, among other factors, of the complex system of sources, the inevitable vagueness of many of the standards and the increased use of legal principles in the contemporary constitutionalism. However, this discretion must be audited in order to prevent arbitrariness. Thus, in the first part of this article, I explain the characteristics of the legal principles and in the second part I describe some of the implications derived from the application of such rules in relation to enforcement of law.