Rule of Law and Constitutionalism. A dialogue between Manuel Atienza and Francisco Laporta

• Autor: Atienza, Manuel
• Formato: artículo
• Fecha de Publicación: 2008
• Institución: Pontificia Universidad Católica del Perú
• Repositorio: Revistas - Pontificia Universidad Católica del Perú
• Lenguaje: español
• OAI Identifier: oai:revistaspuc:article/3189
• Enlace del recurso: http://revistas.pucp.edu.pe/index.php/derechopucp/article/view/3189
• Nivel de acceso: acceso abierto
• Materia: Rule of Law; Constitutionalism; Neoconstitutionalism; Theory of Law; Constitution; Legal System; Imperio de la Ley; Constitucionalismo; Neoconstitucionalismo; Teoría del Derecho; Constitución; Sistema Jurídico

This paper presents, in the form of dialogue, some reflections on the rule of law and the new paradigm of constitutionalism. According to Francisco Laporta, the rule of law has an impact not only on the functioning of the legal system, but also on one's daily life. This indicates that his position on constitutionalism or neo-constitutionalism is not totally contrary, recognizes the contributions of the Constitution, both in theory and in legal practice. However, it is contrary to the current conception of constitutionalism as a paradigm, that is, as a change in the theory of law. It also establishes some of the problems of this new paradigm, for example, the need for a theory of law for each country individually, since the basis of the paradigm is the existence or validity of a Constitution; In addition, this does not contemplate the possibility of the existence of a State without a constitution. Likewise, it states that constitutionalism is more interested in the moral part of the Constitution, than in the legal part of it, which implies that not only a change in the theory, but in the very conception of law. On the other hand, as established by Francisco Laporta, constitutionalism is a set of data seen from another perspective. In effect, it is the advance in the theory of law that allows the Constitution to be analyzed from another angle, and not the other way around. In the same way, it establishes that the differences between the Constitution and the ordinary law are formal and not substantial. These differ in the rigidity and difficulty of reform, and in the higher hierarchy. Finally, he points out that it is fundamental to improve the rationality of both judges and legislators. Both have complex competencies that involve the construction of the legal system, which, as already mentioned, has a direct impact on daily life.