El derecho jurisprudencial penal. Colisiones verdaderas y aparentes con la legalidad y sanciones por ilícitos interpretativos

This paper aims to analyze the concept, the contemporary developments and the paradigmatic cases from the case law in criminal offenses. This will be done by relating such case law to the jurisprudence-source, to the cases, to the constitutional restraints of the legal reserve, to the principal of legal clarity and to the prohibition of analogy. The strengthening of a category such as the interpretive illicit derived from the violation of the principle of non-retroactivity of the unforeseeable, but legitimate, case law changes, is submitted to the analysis in relation to the cases excluded from such principle (law-in-force and individualized, that means, hidden analogy). It is also analyzed with reference to cases that, on the other hand, are submitted to the principle, regarding the different regulation of the ignorantia legis and to the role of protector of the law that holds both the United Sections and the Supreme Courts. The study concludes with a constructive revision of the relation between foreseeability of the Law and the judicial syllogism.