Argumentación jurídica de las sentencias de los tribunales constitucionales como método para lograr la constitucionalización del proceso jurisdiccional (Una lectura a partir de la acción de tutela en Colombia)

This paper addresses the issue of legal argumentation and the rationality of the jurisdictional decision in a Constitutional State, specifically by constitutional courts and how they can through over-interpretation, that is to say, the extraction of implicit or implied norms, reach to a decision as rational, objective, and fair as possible. In this regard, legal argumentation, its functions within the process, and how a better decision can be reached is addressed. Likewise, it is also discussed the concept of rationality and its relation to the law, particularly in a democratic rule of law State, which implies revisiting the role of the judge. Afterwards, reference is made to the constitutionalization of the process and how this result can be achieved using legal argumentation and constitutional interpretation. Lastly, the Colombian experience is debated. Admittedly, under the Tutela action judicial rulings can be challenged on the grounds of failure to respect fundamental rights which in turn offers a rather good example on how implicit rules can be extracted through legal argumentation.