KELSEN PRO AND AGAINST THE neoconstitutionalism
By Roger Vilca
(Director of the Law Review "Contranatura", Right-UNSA, Arequipa)
By Roger Vilca
(Director of the Law Review "Contranatura", Right-UNSA, Arequipa)
In Peru, for a decade neoconstitutionalism (a school of thought that called for the implementation and consolidation of so-called constitutional State) is color and tint ordinary judicial practice to force the judgments have been manufactured from the pinnacle of our legal system, the Constitutional Court. Thus, for a five year period I have been advocating (unsuccessfully of course) a gift of Hans Kelsen guard and malicious prosecutions that swarm with impunity by our faculty (and many dollars) thanks to the speeches of this current of thought. After fixing my attention on studying the penal system (worth emphasizing that in Arequipa we have the cream of the national criminal dogma), I ended up being fatally inscribed on this difficult course. So walk, I encountered the English professor Juan Antonio García Amado, who, like comrade select this path, he has written in favor of Kelsen (and against neoconstitutionalism!) What I would have liked to write to justify my own apology. Why bother to tell me what he has said masterfully? Here is a paraphrase from beginning to end:
Why lie about Kelsen in classrooms and books? Through ignorance and bad faith. Ignorance, because one thing is to quote and other reading. But above all there is bad faith. Kelsen is hateful to many who opt for libel. It is hateful to totalitarian nationalism, natural law (with or without basement), disguised political scientists who want the right legal decisions are exactly as they like and what suits them, advocates of judicial activism as long as it judges to be friends his or her own litter weights of values \u200b\u200band rights that they believe they can be weighed weighed like potatoes or carrots in the market, prophets of the constitution that materially living material of the constitution, national doctoral faculty abroad to defend, paradoxically, a science purely indigenous legal. And many others. The first were those old Nazi lawyers who called it "dog Jew" in times of Hitler and, after 1945, turned into great democrats and moralists without blemish, followed by throwing the blame of all evil past. Kelsen is detested because the legal and political thought was radically demystifying Kelsen, fiercely critical of the legal metaphysics of so much deception in the service of simple desires of domination that refuse to go to the polls, with both the falsity of moral absolutism that serves primarily to get right with the established powers and give the reason the tyrant on call, and lifting many moral pretensions of high court judges that they are because they never contradict the appointing power in the things that hurt him more.
All "pure theory" Kelsen can be synthesized in a very simple formula: if you, professor, wants to do real science of law, describe the legal provisions in force, and explain how many ways can be interpreted. But if what you like is to report on what is just and unjust, what should or should not be applied and how exactly should the judges rule each case, to recognize honestly that you walk in politics and try to practice law passes the ring of his personal convictions. It's his right, but call things by their name and not a perfect science disguise their particular ideology. Kelsen's why so upset that whole bunch of quacks who pretend that their words express the objective truth about the law and not merely the personal opinion of individuals who only want more social influence and better pay.
Of all the lies that teachers often say about Kelsen, There are two particularly crude and therefore highly successful. One is that his theory of law enforcement is a judicial decision as pure and simple syllogism subsumption. The other thought Kelsen's legal and political conservatism leads to a radical and is guilty of even the legal atrocities of Nazism. Now say something only the first and leave for another day the relationship between Kelsen and democratic politics.
Kelsen is at odds with any view of the court decision as a simple operation subsuntive determined solely by the rules of logic. Just read the final chapter of the Pure Theory of law, any their editions, to prove without doubt possible. Unlike pure science, which describes the law without values, the judge can not fail without the mediation of value judgments, it has to weigh the evidence of the facts and must also assess what is the preferred interpretation of the rules attend, among other things.
judicial decision evaluative activity, and from the ethical relativism Kelsen no objective standard or indeed possible in terms of value judgments. Why are so marked dyes irrationality with which Kelsen depicts the judicial decision. Quite the opposite of rationalism that naive and pure objectivity that claim was proper judicial positivism nineteenth century and now reappears in a neoconstitutionalism and their weights. Kelsen himself wrote against the theory of subsumption in terms that leave no doubt, showing the roots of the natural law approach, as a theory that the judge thinks is her decision fully and prewritten prescribed by law, the same way that the legislature is yours in the natural order or in the divine order of creation (confróntese your Naturrecht und positives Recht). Moreover, Kelsen says that the theory of the judge as a mere automaton corresponds to "the ideology of constitutional monarchy: the judge, who has become independent of the monarch, not to be aware of the power law grants, which can not fail to give its character of general law. The judge must believe that it is mere automaton, which produces no law creatively, but Law has already arisen in the law that a decision already finished and ready "(Wer soll der Huter der Verfassung sein?).
On another matter, I suggest to the parties concerned to be reading a book Kelsen's capital, their essence and value of democracy. Then we come to resent the totalitarian charge him his faults. In the universal history of infamy law professors tend to occupy places of honor.
I said ...
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