Interpretación judicial de las leyes de acción positiva en los casos de violencia de género

Abstract

The purpose of the article is to analyze the judicial reasoning against the positive action laws regarding the function of the judge as applicator of the law, which has a margin of discretion like any judicial interpreter, in addition to its own moral reasons related to its freedom. of conscience and the possibility of exercising these powers in the face of affirmative action laws, specifically those that protect women against gender violence, which are prima facie binding because they are closely related to the protection of the rights of minorities, many times constitutionally enshrined. The methodology consists of the study of different written documents such as books, magazine articles, scientific documents, legislation, jurisprudence, among others. The originality and contribution focused on expressing the problem of the limitation or not of judicial reasoning in the face of affirmative action laws. In order to achieve the objective, these aspects were raised: notions about gender violence, legal interpretation in general and, finally, analysis of positive action laws and their interpretation. In conclusion, it is important to highlight that the citizen and state agencies are subject to the Constitution and the legal system, so the right of conscientious objection and the margin of discretion that the judge has in cases is not possible. of affirmative action laws like all judicial interpreters, although this contravenes the modern conception of law in terms of jurisprudence as a source of law creation.