Principle of legality and judicial discretion

Abstract

This paper deals with the transcendence of the principle of legality in the Rule of Law, as a presupposition of effective judicial protection. It highlights, from this dimension, its impact on the system of penalties and, of both, on the application of the law in the courts, in the determination and application of those, to be solved on the basic principles of modern criminal law and guaranteeing the Rule of Law. The normative requirement of reasoned sentences prevails as a consequence of the objective reasoning of the content and interpretation by judges and courts. All of this is shown and developed in the relevant importance of the required motivation of sentences, a guarantee of compliance with legality, effective judicial protection and legal certainty; as well as in the responses to the opposite situation, that is to say the lack of motivation or insufficient motivation. To this end, the most outstanding opinions of scientific doctrine and jurisprudence are highlighted, both in terms of the content and scope of the principle of legality, the fundamental support of the Rule of Law, and in the system of penalties, from a preventive, general and special perspective, in order to guide the final study to the binomial motivation-non-motivation and its judicial treatment, the essential basis of this intervention.