State of Law, democracy and constitutional justice: A view of neoconstitucionalism

Abstract

In this work we analyze the tension, a constitutionalism characteristic, between Rule of Law and Democracy, as well as the revitalisation of constitutional normativity as a real and effective norm, equipped with a specific jurisdiction of legitimacy. The constitutionalism of legal positivism was built on the dogmatic glorification of legality, legal monism associated to a centralized structure of power, the omnipotence of the legislator and the protagonism of the legislative power on the rest of producing instances of right. Nevertheless, the recent developments of the constitutionalism, by definitively confirming the supremacy of the Constitution and the contents that incorporate in themselves, causes transcendental mutations reaching legal order as a whole. The principles of validity, rationality, unit, coherence and legitimacy are reformulated in the light of the transformations of the constitutional paradigm.

Key words: constitutionalism, democracy, Rule of Law, Constitutional Jurisdiction, legal order.