Material Constitution. Legal Solution to the Conflict between Legality and Legitimacy
The material Constitution can be understood as the daily dynamic of systemic reproduction of a society, which may or may not be reflected normatively, and may even contradict the formal written Constitution. Between both notions of Constitution there is a dicho-tomy, but also a relationship of depen...
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| Format: | Article |
| Language: | Spanish |
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Pontificia Universidad Católica del Ecuador
2017-12-01
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| Series: | Revista Facultad de Jurisprudencia |
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| Online Access: | http://www.revistarfjpuce.edu.ec/index.php/rfj/article/view/26 |
| Summary: | The material Constitution can be understood as the daily dynamic of systemic reproduction of a society, which may or may not be reflected normatively, and may even contradict the formal written Constitution. Between both notions of Constitution there is a dicho-tomy, but also a relationship of dependence and subjection. In the present work is based how the material Constitution is the comparative pattern to evaluate the effectiveness and efficiency of the formal legal norms of the normative order of a country, and how the recognition of its legal value against the formal Constitution would allow to solve from the practice ordinary legal, beyond rationality or legal deontology, the common conflict between legality and legitimacy. In this article, we analyze some of the contemporary doctrinal uses and current academic references about the material Constitution, as well as some of its theoretical antecedents. A more complete and comprehensive notion about it is also proposed, identifying its elements, essence and content. In addition, it is proposed to broaden the understanding of constitutionalism from the recognition of the material Constitution, which will require taking a different notion on the defense of the Constitution, constitutional guarantees and the scheme of recognition of rights. |
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| ISSN: | 2588-0837 2588-0837 |