El razonamiento jurídico del juez y las formas articuladas de justicia constitucional desde una perspectiva comparativa

Abstract

The following article shows different manifestations of creativity from judges in judicial processes. In particular in relation to the protection of fundamental rights and analyses jurisprudence and the source of legal origin on equal terms, without establishing hierarchy between the sources.
Through the balanced use of the jurisprudence and the law in judicial reasoning, the separation of the authorities and a balanced reasoning that does not subordinate one source of rights to another (considered as superior or principal), is garanteed. Likewise, arbitrariness and excess from judges are avoided when they move away from the law frame or when their interpretations are very restrictive or made independently, taking as reference literal meaning and not giving the jurisprudence its important role.
The article explains the hypothesis of constitutional processes fusing together, controlling the constitutionality of the laws and protecting the fundamental rights in specific cases.