Abstract
The subject of this paper is the theory of legal principles as it applies to the exercise of the jurisdictional function. After differentiating discretion from interpretation, this study defends the incompatibility between discretion and jurisdiction. Today, legal principles have two main meanings: they are elements that make up the structure of the normative system and they also constitute asserted values [under positivism]. Both meanings have been proposed as an answer to the theory of jurisdictional discretion. Both meanings of principles can be used as an instrument to violate positive law and to depart from the duty to recite the grounds. The antidote lies in the argumentative burden imposed on the magistrate when invoking a principle.
Keywords:
legal principles; discretion; jurisdictional function; values; legal norm