The application of law in the legal systems constitutionalised
Main Article Content
Keywords
Constitutional Law, legal positivism, Theory of law
Abstract
The following publication comprises the enhanced version of two lectures presented at the seminar “The application of law in constitutionalized legal systems”, held at Universidad EAFIT, School of Law, September, 2003.
The first lecture aims to give a preliminary approach to the concept of neo-constitutionalism. The term is an expression that has been expanding over the legal theory with the pretension to gather all the transformations that happened over contemporary legal systems after world war two. Those transformations have pushed to challenge the thesis associated to legal positivism. Opening –according to some- the path to a new law paradigm.
The paper tries to examine the influence of the referred transformations on the way to understand the application of the law. Specially, because they are an stimulus for developing new ways to build arguments, particularly the so-called proportionality principle. Hence, the article presents a set of arguments, where it asks in first place if there is any difference between the so-called contemporary constitutionalism, and the so-called traditional constitutionalism, in order to try to find differences that justify to call for a neo-constitutionalism. In second place, it takes Bobbio’s three-way approach to legal positivism (theoretical, methodological, ideological) to evaluate the points of rupture and continuity among the thesis associated with legal positivism and neo-constitutionalism.
Having seen the changes over the understanding of the law phenomena which affect not only the theories of the legal-norm and the interpretation, but also the concept of law, the way to analyze law relations with morality, and the role of juridical sciences. Therefore, it is necessary to analyze the real transformation on the legal systems, that have prompted all these changes. That is the purpose of sections three and four of this writing. There the article makes a detailed characterization of the rule of law within an specific state. That is the model of organization that supports the neo constitutionalism thesis. It is important to stress how the particular characteristics of this kind of state converges a progressive expansion of the legal reasoning founded on constitutional principles reaching all the law frontiers. Stimulating at the same time a framework to apply the law that becomes conscious and visible the broad discretionality of the organs of adjudication, as well, as becoming aware of the necessity to develop argumentative tools, as the principle of proportionality, oriented to frame and legitimate such power.
The first lecture aims to give a preliminary approach to the concept of neo-constitutionalism. The term is an expression that has been expanding over the legal theory with the pretension to gather all the transformations that happened over contemporary legal systems after world war two. Those transformations have pushed to challenge the thesis associated to legal positivism. Opening –according to some- the path to a new law paradigm.
The paper tries to examine the influence of the referred transformations on the way to understand the application of the law. Specially, because they are an stimulus for developing new ways to build arguments, particularly the so-called proportionality principle. Hence, the article presents a set of arguments, where it asks in first place if there is any difference between the so-called contemporary constitutionalism, and the so-called traditional constitutionalism, in order to try to find differences that justify to call for a neo-constitutionalism. In second place, it takes Bobbio’s three-way approach to legal positivism (theoretical, methodological, ideological) to evaluate the points of rupture and continuity among the thesis associated with legal positivism and neo-constitutionalism.
Having seen the changes over the understanding of the law phenomena which affect not only the theories of the legal-norm and the interpretation, but also the concept of law, the way to analyze law relations with morality, and the role of juridical sciences. Therefore, it is necessary to analyze the real transformation on the legal systems, that have prompted all these changes. That is the purpose of sections three and four of this writing. There the article makes a detailed characterization of the rule of law within an specific state. That is the model of organization that supports the neo constitutionalism thesis. It is important to stress how the particular characteristics of this kind of state converges a progressive expansion of the legal reasoning founded on constitutional principles reaching all the law frontiers. Stimulating at the same time a framework to apply the law that becomes conscious and visible the broad discretionality of the organs of adjudication, as well, as becoming aware of the necessity to develop argumentative tools, as the principle of proportionality, oriented to frame and legitimate such power.
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