Neoconstitutionalism

definition, critique and the realization of fundamental rights

Abstract

This article analyzes the current debate on the theory of legal norms in the context of post-positivism or neoconstitutionalism. It is noted that the term “neoconstitutionalism” does not refer to a single normative theory, but rather to a complex and pluralistic construct of methods, legal reasoning, philosophy, and doctrine. In this sense, the replacement of the positivist legislative state by the post-positivist constitutional state has brought about profound changes in the theory of the norm, as it has conferred applicability or normativity upon principles and fundamental rights. From the critique of positivism and of neoconstitutionalism itself toward neoconstitutionalism, in a dialectical relationship, there is the construction of a rational, weighable post-positivism that respects the application of rules and subsumption; this constitutes a constitutional filtering mechanism in contrast to constitutional fundamentalism. Finally, it should be emphasized that neoconstitutionalism is not a theoretical-normative construct that, in a phenomenological chain of cause and effect, excludes the rule-based model and gives rise to a deficit of rationality in law, thereby necessarily opening the door to judicial decisionism.