The assumption of the so-called Constitutional State of Law has meant the constant loss of relevance of the law within the system of sources. This can be observed with increasing recurrence in the context of application, from thesis that seek to grant radical effects to the principle of binding force of the Constitution, to the horizontal effect of fundamental rights and to the irradiation effect of the Constitution, suggesting that the generality of the judges can disapply the legal norms by virtue of apparent constitutional reasons. Faced with these radical theses and recognizing the operation of constitutional norms, this paper claims the role that falls to the legislator, given its link with the democratic principle and the existing link between form and freedom. Then a model of moderate or deferential constitutionalism is defended.
Keywords:
Constitutional state of right, Neoconstitutionalism, Democracy, Fundamental rights, Judicial activism
Leiva Fadic, F. (2014). Towards a moderate or deferential constitutionalism. Revista De Derecho Público, (73), Págs. 133–170. https://doi.org/10.5354/rdpu.v0i73.35661
