constitutional law constitutional law is a branch of public law whose field of study includes analysis of the fundamental laws that define a state. In this way, is studied everything about the form of state, governance, fundamental rights and the regulation of public authorities, including relations between public authorities, as the relations between government and citizens
Content
political power traditionally the power potential is known as a third party to do or perform what is asked or ordered. In that sense, a body has power when it has the capacity of coercion to enforce its mandates imperatives. The actual meaning in liberal democracies is linked to the existence of democratic legitimacy, and the operative capacity allocation according to criteria of political expediency. Thus, the concept is opposed to the power that is attributed to the Administration or the courts, since they possess a will that has to be based on a text, ie have a formal capacity whose decisions can never be based on opportunity . This power requires a very strong popular support and / or be connected to lobbyists and power factors.
Constitution
The Constitution is a legal-political character of the constituent power fruit based (as normativism) throughout the system, placing it as a standard that reflects, defines and creates the powers that be limited to service people. You will also have the character of supreme law, so that will prevail over another one that is later and contrary to it (constitutional standing). In the words of Kelsen, is the standard that gives logic to the whole system. The common law will emerge from it by derivation and implementation mechanisms.
formal structure
Thus, the formal structure of a constitutional text established the doctrine would be: Rationale
original constituent power
own national sovereignty.
powers that be.
Table of Fundamental Rights. (Part dogmatic)
(Note that the Anglo-Saxon doctrine generally considered to Table of Fundamental Rights and before the powers that be.)
Constitutional structure
On the other hand, the physical structure of the Constitution would Next: Preamble
dogmatic party (individual rights).
substantive fundamental rights.
basic procedural rights.
organic part. Creating
constituted powers. Creating
the powers that be constitutional doctrinal principles
powers Division Main article: Division of powers
Indeed it must be said 'power sharing' in different functions, or 'tripartite division of power' being three Classics. Allows an effective internal and external control. The pure model projected a situation of complete independence between the three expressions of power (legislative, executive and legislated decide the rights of individuals). Hg
rule of law Main article: Rule of Law
This is created when any action State social support is the norm, so that state power remains under the existing legal order to comply with the procedure for its creation and is effective when applied in reality based on state power through its governing bodies, creating an atmosphere of absolute respect for human and public order.
However, there is not enough that a public authority under the law. To be in the presence of a true and genuine rule of law, the law of that state, must meet a number of characteristics that give rise to a real rule of law or material. The concept of rule of law is explained by two concepts: the rule of law in a formal sense and the rule of law in a material sense.
National sovereignty
Main article: National sovereignty is an ideological
emerged from liberal political theory, which can be traced to Locke and Montesquieu (late seventeenth-century England, eighteenth-century France). Does sovereignty belong to the nation, and only an abstract entity, usually tied to a physical space (the terra patria or homeland), which belong to both citizens as well as the past present and future, and is defined as superior to individuals who compose it. Also involves both legal and actual ability to decide finally and effectively in any conflict that disrupts the unity of social cooperation or partnership, territorial if necessary even against the positive law and also to impose the decision of all the inhabitants of the territory
Fundamental Rights
Main article: fundamental law rights or powers
basic and inalienable rights that are recognized in a system to humans. Natural law theory assumes that every man should be recognized in any system. Constitutional Stability
The Constitution must serve as a legal framework for the justification of political power and therefore must possess a degree of stability in its text, supporting the passage of successive governments without changing its lyrics. Therefore, the amendment of the supreme law is subject to many restrictions, noting in particular the requirement for highly qualified majority voting on the alteration. Constitutional Supremacy
Main article: Constitutional Supremacy
concept from the ancient precedent "Marbury vs. Madison," and that is the legal structure of a hierarchical pyramid in which the Constitution would occupy the top. Thus, the rule is the point higher in the hierarchy rules, so that any subsequent and contrary rule which eventually came into collision with the supreme law result in the invalidity of the lower standard. The development of this concept is due to the Pure Theory of Law by Hans Kelsen .. Stiffness
constitutional constitutional rigidity is a concept whereby the supreme law must designate a specific process for its own amendment, unlike the commonly used procedure for the production rules infra. On the contrary, we speak of constitutional flexibility the more similar is the process of reform of the regular legislative building. The degree of rigidity depends on a number of factors disjunctive:
If the reformer body is created and chosen especially for the reform and is one of those usually work.
The number of political institutions whose consent must attend to reform the constitution.
majorities required for reform.
people's participation, which can be direct (through a referendum) or indirect (through elections for a new assembly that must ratify or drafting the reform). Control of constitutionality
The Constitution has the character of supreme law, and therefore, its implementation must be guaranteed by the legal system in its daily operations. Ensure that the rule does not violate constitutional acts of the constituted powers of the Constitutional Control
Collision regulations
If two legal rules were incompatible with each other content, there is the so-called collision regulations. The most widely used to illustrate a collision rules, goes to conceive a situation in which a standard order the completion of a particular behavior, yet another different rule prohibiting the carrying of such behavior.
To resolve the collisions between standards, according to the principle of legal coherence, we use a set of criteria that establish what rule prevails, and what rule is repealed.
Hierarchy: Hierarchy implies the existence of different standards range, so that it is in a top rung of the ladder, destroy the lower standard.
Temporality: On the assumption that two provisions of equal rank to suffer a collision regulations, the later in time rule supersedes the previous standard.
Specialty: In the event that there are two rules of equal rank suffering a collision, the law which seek more specific regulation of the matter takes precedence over the more general rule. Priority
axiological: it should apply the law which is mentoring a higher duty on the scale of constitutional values \u200b\u200b(life over property, eg)
Campos
constitutional law Constitutional law, broadly addresses the following areas: Power Theory
State Theory Theory of the Constitution
Theory of Human Rights
[edit] See also
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