El Derecho de creación judicial, formulado desde el punto de vista de la Teoría del Derecho

Abstract

Judicially created law is usually understood to be the creation of norms that are not deduced directly by the Judge from the law. These norms are created in two ways: in the absence of a legal prescription (praeter legem) or contrary to legal prescription (contra legem). In the second case, the problem of normative status raises the question of the constitutional conformity of such behaviour, and the answer is in the negative. The first assumption is constrained at the theoretical level by the legal norm of acritical acceptance consisting in the normativist identification between the written norm and the norm itself. Thus, the question should rightly be reformulated through the systematic distinction between the written norm, legal norm and decision norm in the process of productive concretion that any legal case to be resolved requires and which is performed by judges in their day-to-day activity.