The "new law" is characterized by its supremacy over "other rights" (without admitting an agreement to the contrary), since it defends the interest of the international community (general and common), fostering international solidarity; configuring on the basis of: conventional, institutional, international jurisprudence and international custom.
introduction
The quasi-world maelstrom of globalization has brought with it not only the import and export of new technologies among unsuspected States, but has also brought about change and development of all kinds. In this sense, it has led to the creation and / or empowerment of new disciplines or legal theories such as: global law and neo-constitutionalism.
Very little has been said, at least locally, about them. However, we consider that their knowledge, study and analysis are very important because we are "members" of this global situation and therefore, their facts and consequences affect us (for or against, as the case may be) to a greater or lesser extent. measure. Consequently, the present work is oriented to unravel its nature and content, as well as to outline some comments by way of reflection and conclusion.
II. Global law: the contemporary legal order
First of all, we have that this new law originates from the jus gentium (Roman law applied to foreigners and the Romans in their disputes with them), is based on the ius cogens (law of the States "to necessarily comply") and ius commune (Law basically applied to global legal business), to face challenges against social scourges such as: terrorism, international criminal organizations, general corruption and the hegemonic “order”, mainly.
Luís María Bandieri, affirms that this “Universal Law” had its origin (in the Middle Ages) in the Roman law compiled by Justinian: The Corpus Juris Civil, was the ius commune of its time, then it became the Law of the Union European and now, global law.
Global Law was strengthened in the early nineties (Prosper Weil, points out that this order combated the existence of a "multiform legal crisis" of the international normative system, which at that time suffered the world), by coining new paradigms such as: liberal democracy, free trade, the right of free self-determination of peoples, inviolability of borders and agreement between the great powers. To later start a frank development in this XXI century.
The globalization of the "new legal order" breaks the world legal scene and is equivalent to: autonomy, spontaneity, new stability and balance, more social, less state, without borders and always under the base and unrestricted respect for the fundamental rights that It grants the human being as an integral part of the new legal subject: Humanity.
This "global legal theory" is precisely shaped, as a counterpoint to dogmatics, appealing to a more just, democratic and free world, based on the principles of personality, equality, solidarity, subsidiarity, integration and authority; recognizing yourself in a complete, complex, different, but united world.
Juan José Martín Arribas points out that the “Global Law” imposes obligations and rights of a higher rank, such as: i) Protection of human rights, ii) Protection of the environment, iii) The proliferation of weapons of mass destruction, or iv) The fight against terrorism; Incidentally, they are of common interest and concern to the world as a whole, only globally satisfied.
Humberto Leanza warns that the notion of the common heritage of humanity basically contains an element of material justice of common interest, as well as the increasing degree of humanization that the international order has been achieving. It is worth highlighting the constant weight that its solidarity values and principles are achieving, in addition to the pursuit of common or community objectives; and on the other, the birth of new legal paradigms.
This Global Law presents an important upturn as a rapid evolution, the same one that (revalues the human being, worrying not only about their well-being, but also about their survival; based on universality, heterogeneity, interdependence and decentralization) is a matter of current and open debate, development and application in almost all corners of the Earth. In it, the processes of democratization and humanization stopped being inert prose and went on to achieve the highest degree of acceptance, legitimation and recognition in the international community.
The "new law" is characterized by its supremacy over "other rights" (without admitting an agreement to the contrary), since it defends the interest of the international community (general and common), fostering international solidarity; configuring on the basis of: conventional, institutional, international jurisprudence and international custom.
Ergo, Global Law tends to horizontality, union, democracy, sustainable development, cooperation and solidarity of the States of the world, through a dynamic peace, which at the same time eliminates injustices. It contains paradigms, principles and superior values that allow us to face new global challenges.
This "World Law" has also given us recent "Rights", such as: that of international responsibility, of international organizations, international procedure, integration, universal human rights, of the European Union, neo-constitutionalism, environment, development, bio international law, new technologies, sport, international economic law, treaties, etc.
According to Rafael Domingo, this new principle legal order, has as its principles: i) Law emanates from the person, ii) There is no law without freedom, nor freedom without law, iii) dignity, equality and justice as its columns, iv) Protects the harmony of peoples, v) Global law fosters social pluralism, vi) It is rational, common and secular, vii) It has legitimate authority, viii) It complies with the norms and acts in solidarity, ix) The legal reason is authority; the rule of law, power, and, x) It repels itself with force, it advances with authority.
Finally, given the uncontrollable advance of this new law, which we welcome, we are witnesses to the propensity for global judicialization of international jurisdiction (International Criminal and Law of the Sea Tribunals, verbiage), the greater relevance of international jurisprudence and the Unquestionable universalization as a promotion of the defense of human rights. Furthermore, this “World Law” insinuates future courses pending to be traveled, to form an alternative legal dogmatics, philosophically sustainable, historically viable and legitimately functional.
III. Neoconstitutionalism: challenges and risks
Secondly, we point out that neoconstitutionalism has a mainly German origin (a state that, stunned and trapped by the contemplation of the atrocities of Nazism, only had to be amended), specifically in the first jurisprudence of the German Federal Constitutional Court in 1958; and its subsequent development in the United States, Italy and part of Latin America.
It appears as a "healthy awakening or constitutional awareness in favor of fundamental rights and where they stand as the central axis of the legal system, and as the basis of universal foundation of irrefutable legitimacy" (which is presented - despite its name - no as a new but yes, certainly a new trend or legal theory of global irradiation), "thanks" to the limited role of legal doctrine to explain the justification (or fairness) of law in this reality or postmodern circumstance.
This legal trend is also reaffirmed, as a way to tune in as States with a recent legal order -as a consequence of the almost general globalization in the world-, called "Global Law" (understood in turn, as a "new" legal order which opposes a radical defense of the dignity, solidarity, equality and justice - legal certainty - of the person, as legal pillar principles and which requires institutions and strong political parties, transparent and with broad credibility).
Neoconstitutionalism as a process of constitutionalization (which limits state powers and / or protects fundamental rights) of the legal system or life (a) of a State: i) According to Antonio Baldassarre, "It places the Constitution as a new order of values", and ii) According to Víctor Bazán, "As the answer to the tension between democracy and constitutionalism…"; it leaves behind its formal and to some extent quasi-expectant function; to “transform” into a more active and leading part of it and guide the citizen coexistence of our days in a much more just way.
The "new" constitutionalism is already present in our constitutional scenario. In this sense, recent (and others not so much) recognitions of "constitutional rights" such as: i) "due process", ii) "the new eight forms of habeas corpus" - such as: reparative, restricted, corrective, preventive, translational, instructive, innovative and related-, iii) "the development of the types of habeas data", dividing it into two groups: a) own: as the informative (which is subdivided into: finalist, exhibition and author), the additive, the rectifier or corrective, the exclutorio or cancelatorio and the reservationer; b) improper: such as protection of access to public information; iv) “to the truth”, v) “to the legal personality”, vi) “to drinking water”; vii) "to health", viii) "to mental health", ix) "to education", x) "to property",xi) "to association", xii) "to cultural identity", xiii) "to life" and xiv) of the principle "ne bis in idem" (in Peru); as well as, xv) “the collective habeas corpus or protector of diffuse or homogeneous multiple rights” (in Argentina); give strong evidence of this.
However, neo-constitutionalism ("contemporary constitutional justice", we will say, and also called: post-positivism, guarantee, strong, overloaded, committed or valued constitutionalism, specific constitutional interpretation, constitutional rematerialization, political philosophy or ideology and legal philosophy) is more than that; since according to Paolo Comanducci: “He does not limit himself to describing the achievements of the constitutionalization process, but rather, he values them positively and advocates their defense and expansion; and furthermore, it implies a sort of trilogy made up of theory, ideology and methodology ”.
Neo constitutionalism aims to perfect the rule of law, submitting all power (legislator and executive, included) to the law and appealing to constitutionality and not legality; that is to say, that it places the constitutional jurisdiction as guarantor and last instance of any legal matter to evaluate and decide vicissitudes of a new political, economic and social-global reality. We are, therefore, before the advent and enthronement of the (although not consolidated, nor fully developed): “Paradigm of the Constitutional State”.
It goes without saying that there is no "single neo-constitutionalism", but several, according to the differences in historical and comparative realities specific to each State. Neoconstitutionalisms that, nevertheless, will be developed more or less at the same time, in addition, to the new normative framework that is Global Law.
Before the arrival of neo-constitutionalism, the constitutional jurisdiction of the Peruvian State must know how to face the "challenges" that this implies (which are not small, nor simple; in addition, the current situation demands it); and which are basically: I) Recognizing new principled rights, II) Finding ways to overcome constitutional legitimation, III) Being duly trained and aware in light of this new “Constitutional Theory” (not only the operators of the constitutional jurisdiction), IV) To reach a refined legal argument, and v) To have, strictly and fully, the personnel - magistrates and administrative staff - suitable and duly trained, preferably ex ante (via “true,transparent and objective public merit contests ”and the same in the case of substitutes and provisionals; for example. In addition to being paradoxical that the opposite is carried out or applied, and then strive to formulate proposals to improve the Peruvian judiciary and prosecution, even going so far as to present proposals for this purpose, with the clear intention of leaving everything as this or worse still, continue to corrode it olympic).
You should also bear in mind that it also implies facing "risks", such as: i) Interpretive constitutional exacerbation, ii) Constitutional authoritarianism due to the tendency to "constitutional truth (and not of the Constitution or Magna Carta) as unique, exclusive, exclusive and last ”; verbigracia, "the thing judged constitutional" recently established by the Peruvian Constitutional Court (TC), which ran over / subjected to "the thing judged ordinary, classic, conventional" and until recently "unique", arbitrarily and unconstitutionally creating a third instance (in doing so, the TC also overwhelmed the Constitution, by tacitly ruling that it did not violate the Magna Carta, because in his opinion "the Constitution is practically the TC"); apart from clamorous,mistakenly and illegitimately trying to distort and transform the civil law legal system into common law, as if the latter were that simple, to say the least. The creation of constitutional res judicata is what we consider as an unfortunate as a misguided application of neo-constitutionalism in the Peruvian law or legal system, iii) Constitutional corruption or "jurisprudence of interests or lobbies", iv) The extreme casuisticalisation of Law, to the detriment of its original ordering function; and, v) The moral interpretation of the Constitution, which would open up an immense range of subjectivisms.The creation of constitutional res judicata is what we consider as an unfortunate as a misguided application of neo-constitutionalism in the Peruvian law or legal system, iii) Constitutional corruption or "jurisprudence of interests or lobbies", iv) The extreme casuisticalisation of Law, to the detriment of its original ordering function; and, v) The moral interpretation of the Constitution, which would open up an immense range of subjectivisms.The creation of constitutional res judicata is what we consider as an unfortunate as a misguided application of neo-constitutionalism in the Peruvian law or legal system, iii) Constitutional corruption or "jurisprudence of interests or lobbies", iv) The extreme casuisticalisation of Law, to the detriment of its original ordering function; and, v) The moral interpretation of the Constitution, which would open up an immense range of subjectivisms.
IV. Conclusions
Briefly expounded on the elementals, however, important reference topics of global law and neo-constitutionalism, we consider that reflection, approval and commitment are worth considering: i) Reflection, because it is admirable and remarkable as a liberal international and global policy, unquestionably generates a formula of generalized progress to all corners of the globe, ii) Good, because they are theories about which we have to congratulate ourselves for the positive effect it generates where it is applied; and, iii) Commitment, because said legal theories will not remain in force with the sole implementation of the same, and will require a permanent defense, dissemination, majority to access continuity and consolidation.
