Constitución y argumentación

Resumen

The step from the so–called legislative state to the constitutional state of law, understood as the culmination of the subjection of power to law, made the viewpoint of legal positivism obsolete throughout the XXth Century. Neither excessive state intervention , nor excessive legislation , nor interpretative formalism, account for the legal and political structure of contemporary democratic states. These are presided over by Constitutions of a normative nature made positive by the values and material principles of justice. Accordingly, the different versions of «neoconstitutionalism», both the critical positivism of L. Ferrajoli, and the embryonic surmounting of the positivist parameter by R. Dworkin or R. Alexy, test out a conception of the Law which emphasizes the question of the growing task of justifying the legal system i.e. the demands of legal reasoning and, especially, of the predominant place held within that by constitutional reasoning . This is so not only with respect to lines of argument used by the lawmaker , who interprets and develops the text of the constitution, rather than applying it stricto sensu , but also especially with respect to the judicial perspective. Here, without any qualitative difference, only institutional, the constitutional judge and common judges justify the processes of interpretation, application and development of the Constitution by way of counter–majority authority for the guardianship of rights.