Abstract

PERALTA PERALTA, Félix. Judicial discretion and penalty. Rev. Jur. Der. [online]. 2017, vol.5, n.6, pp. 23-32. ISSN 2413-2810.

Summary The judicial decision as a legal instrument that setties a conflict of legal relevance can be expressed in a type of sanction of the same character, however it must be based on legal or principles whose validity is in the Political Constitution of the State, both in its formal structure and its content. However, these same legal norms give the judge the power to adopt different solutions for a case, thus the idea of judicial discretion arises. This paper refers to the sources of validity of legal norms based on the principle of normative hierarchy to justify the imposition of the legal sanction, as well as the theoretical approaches that seek to justify the solution to be adopted according to the texture of the norm that in its case is vague or indeterminate, stating that its substantive -the legality principle- and adjective -the due process and its foundation aspects- approaches constitute the limit to discretion. For this purpose, the imposition of a legal sanction is analyzed in the field of Peasant Native Indigenous Justice.

Keywords : Legal sanction; discretion; essential rights.