Abstract

RUEDA VASQUEZ, José Miguel; MOLINA GOMEZ, Julián R.  and  CUBILLOS RUIZ, Álvaro. The Social Rule of Law, Discretionary Application?. Díkaion [online]. 2022, vol.31, n.2, e3129.  Epub Aug 23, 2022. ISSN 0120-8942.  https://doi.org/10.5294/dika.2022.31.2.9.

The evolution of human organization models has enabled the emergence of modern state structures, which in the Colombian case, crystallize in the social rule of law adopted by the Constitution of 1991. This State model seeks the actual and effective guarantee of constitutional precepts based on the role of the constitutional judge as judicial guarantor of the Constitution, its rights, and principles, among others. Judges use their discretion to overcome ambiguities, vagueness, antinomies, or any other conflict in the Colombian legal system to make the best possible decision per constitutional precepts. In light of this critical role of the judge and their discretionary power, this paper reviews two unification rulings of the Constitutional Court of Colombia to determine whether this administrator of justice incorrectly applied the social rule of law as part of the presumed exercise of its discretion. The preceding will be achieved through a dogmatic methodology. The chosen rulings, together with normative, case-law, and doctrinal sources, will be analyzed to determine if, in the case studies, decisions were made contrary to the principles derived from the Colombian Constitution as a result of inappropriate use of discretion, specifically the erroneous application of the social rule of law clause.

Keywords : Rule of law; judicial discretion; fundamental rights; arbitrariness; Constitutional Court; non-application; normative Constitution.

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