EL SOMETIMIENTO DEL JUEZ A LA LEY, LA CERTEZA Y LA FUERZA VINCULANTE DE LA DOCTRINA DEL TRIBUNAL SUPREMO

Abstract

The judge’s submission to Law falls within the overall “principle of legality”, whose legal positivist establishment occurred in the 18th century (about all in Europe, after the French Revolution). But the relation between judge and Law, which in that context was without problems (the judge had to apply the Law suposedly certain and clear), is now in a very different theoretical, political and institutional framework. Inside the system, the alteration of one of its elements usually entails the need to modify some or all of the rest; otherwise, the system either loses its structure or comes something different. In the initial triangular relationship between Judge, Law and Certainty, the subsequent redefinition of Law in a post-positivist key, but maintaining unchanged the original positivist concept of positivist Certainty, brings about the loss of the nature of the constitutional judge (who loses one of his essential attributes, independence).