Principle-constitutionalism and guarantee-constitutionalism ; Constitucionalismo principialista y constitucionalismo garantista
In this paper, the author introduces and elaborates on the most relevant differences between neoconstitutionalism and a version of constitutionalism that is essentially defined in terms of garantism. Firstly, he argues that constitutionalism can be conceived in two opposite ways: as a way to overcome legal positivism, thus with a certain tendency towards Iusnaturalism, or as the expansion or improvement of the former; for these purposes he commits himself to a revision of the standard terminology. Secondly, the author maintains that were the constitution to embody principles of justice of an ethical-political nature, then it will disappear the main distinctive feature of legal positivism: the separation between Law and morality or the separation between validity and justice. He considers that essentially garantist constitutionalism is a strengthened version of legal positivism: it completes a rule of Law system since it implies both submission to the Law and judicial review. Fourth, the author maintains that the argument that any legal system objectively meets some «ethical minimum» is nothing more than the old iusnaturalist claim. Ethical constitutionalism, for which constitutional principles are intended to be objectively fair, is thus the current version of ethical legalism. Fifth, the author objects to the distinction between principles and rules that underlies a conception of the constitution and of constitutionalism opposite to the positivist and garantist one. Sixth, the author claims that constitutional principles' being always weighted and not only applied threatens the independence of the jurisdiction and its political legitimacy. And, finally, the author stresses that constitutionalism somehow implies both the undermining and virtual collapse of the normativity of the constitutional principles as well as the devaluation of fundamental rights to merely generic ethical-political recommendations. ; En este artículo, el autor presenta las diferencias más relevantes entre el neoconstitucionalismo y el ...