Below we will present the opinions of various authors on the subject: Wikipedia (2007), exposes us exhaustively, that Constitution is a term that comes from the Latin cum = con and statuere = establish. It is the fundamental rule, written or not, of a sovereign State, established or accepted to govern it.
The constitution sets the limits and defines the relationships between the legislative, executive and judicial powers of the State, thus establishing the bases for their government and organization of the institutions in which such powers are based. It also ensures the people certain rights. The majority of the countries have a written constitution.
In legal - political doctrine there is a conventional difference between "constitution" and "constitution". By constitution is understood the real and effective way in which a State is organized and functions; that is, the way in which power is really constituted within it.
When we speak of the Constitution, however, we understand the set of supreme norms that govern the organization and operation of a State. They are legal norms, not a factual situation, that generate rights and obligations. From a legal point of view, the most interesting concept is the second.
- Hans Kelsen.- The concept of constitution can have two senses, a logical - legal sense and a legal - positive sense.
In its logical - legal sense, it is the fundamental norm that is not created in accordance with a legal procedure and therefore it is not a positive norm because no one has regulated it since it is not the product of a legal structure, it is only a budget basic; From this, the legal order will be formed, whose content is subordinate to the fundamental norm, on which the validity of the norms that constitute the legal system lies
In the legal - positive sense, the Constitution is an assumption that gives validity to the legal system as a whole, and the entire legal system rests as a fundamental rule.
- Aristotle.- This thinker not only had an impact on philosophy and the methodology of logic and ethics, but also on the conformation of political science and on the first conception that was had of many political definitions; Obviously, in his work we find a typology of the Constitution.
But he never formulated a systematized theory about it, he never intended to scientifically codify a consistent study of the Constitution. However, Aristotle had a vision of the Constitution in the following aspects:
a) The Constitution can be studied as a reality, from this point of view it is the occurrence of the life of the community, it is the very life of society and the State, the existence of a harmonized or politically organized community;
b) The Constitution is an organization, in that sense it refers to the way of organizing the political ways of reality;
c) The Constitution can be studied as lege ferenda, that is, every ruler must analyze which is the best Constitution for a State, the best forms, by virtue of which the state is better organized for the realization of its purposes, specifying those of the community.
Aristotle, when analyzing the political typologies, reaches a conclusion: neither the monarchy nor the oligarchies nor the democracies are suitable, but rather that the best constitutions are those that are mixed, that is, those that have combined aristocratic, monarchical and democratic.
- Karl Loeweinstein.- He is one of the great realists in the study of Constitutional Law in contemporary times.
He argues that in every society there is a real or ontological Constitution. An ontological Constitution is the being of each society, it is the real social culture, it is the recognized forms of conduct, the political principles on which every community is based, and which is formalized in a written Constitution.
- Georges Burdeau. - For this author, a Constitution is the status of political power converted into state institutions. The Constitution is the institutionalization of power.
- Maurice Hauriou.- He says that the Constitution is a set of rules on matters of government and the life of the community. The Constitution of a State is a set of rules that are relative to the government and the life of the state community.
- Jorge Carpizo.- Gives a clear description of the Constitution, the theories, positions and currents that have been around it.
In addition to this great contribution, he also analyzes the concept from different angles, and tells us that the word Constitution, as such, is a word that has different meanings, it is a multivocal word.
Thus, when there is a certain order that allows events to take place between the rulers and the ruled, there is a Constitution. He says that the Constitution can be viewed from different angles, from an economic, sociological, political, historical and legal angle, and from a legal point of view, we see the regulated life of a country, and that Constitutional Law will be the structure of the functioning of the State.
A Constitution is a dialectical game between being and ought to be, the Constitution of a country is dynamic, it is a permanent duel between being and ought to be, a permanent duel between the norm and reality. The norm can go beyond reality, force it to conform to it, but with a limit: that it does not try to violate that reality in anything that infringes on dignity, freedom and human equality.
Carpizo points out that the Constitution can be viewed from two angles, as a material Constitution and as a formal Constitution. The material Constitution will be the content of rights that men have against the State, that organization, attributions and competences are in the Constitution, it is the content of the Constitution itself. From the formal point of view, it is the document where these constitutional norms are, which can only be modified by a special procedure.
- Roberto P. Lopresti.- This author affirms that the Constitution is the legal application of the constitutional reality. And it understands as constitutional reality the factual resolution of the written and unwritten rules of the constitutional precepts.
He says that the factual mutations are within the rule of law, the product of the political needs that the peoples have to resolve the daily application of the governing norm in terms of resolving constitutional crossroads and operational government acts.
- Masías (2004), deduces that the Constitution is the essence and qualities of a thing that constitutes such form or system of government that govern in each state. It is the theory and practice of the governance of nations. It is the fundamental code or law that comprises the bases of said system.
- García Calderón (2003), states that the Constitution is the law of laws that designates the form of government of a nation, arms the public powers and details its powers, establishes at the same time the rights and duties of the rulers and the governed.
- Villar (2002), this author says that in a material sense the constitution is a complex of written or unwritten fundamental legal norms, which draw the main lines of a legal system.
In a formal sense, it is a set of legislative norms that occupy a special and supreme position in the legal system and that regulate the functions and fundamental organs of the State. These norms are formulated by special bodies or by more rigorous procedures than those corresponding to ordinary laws.
- Flores (2002), mentions that in law the Constitution acquires the same meaning, concretizing par excellence to the norms of higher hierarchy within the political legal framework of a State and that they serve as guiding principles to regulate the relations between the public powers and with the citizens in general, in the fundamental aspects of the legal, civil, criminal, tax, labor, social, family, economic, political, etc.
These guiding principles constitute the backbone of legal, political, social and economic thought in the countries of the world.
- Torres (1998), argues that the real situation on which the 1993 Peruvian Constitution was drafted differs from the previous one (1979), because the situation has changed, due to internal experience and the globalization of the economy.
Indeed, the policy of taxation as an indirect control instrument has not yielded good results, because due to internal pressures and lack of firmness, tax exemptions or their benefits have ended in some cases, such as in Peru, in benefits. highly debatable which everyone considers to have legitimate access. Likewise, some companies evaded taxes by pretending to produce exempt goods and services, generating a supervisory bureaucracy, poorly paid, that accepted bribes. Instead of developing an adequate industry, only public immorality and economic pressure groups increased.
- Rodríguez (1997) explains that the State Constitutions contain legal norms that serve as the basis or foundation for all disciplines of Law.
Thus, these “Cartas Magnas” have two kinds of rules, some of which refer to the structure of the Judicial branch or State jurisdictional body, its organization, the form of access to the position, the guarantees that magistrates enjoy, their responsibilities, the creation of special bodies for the selection and appointment of magistrates, establishment of guarantees for the administration of justice to ensure due process, etc.; and others whose purpose is to guarantee compliance with the constitutional provisions related to the rights of the person and compliance with the normative hierarchy also provided by the constitution, granting actions to appeal to the jurisdictional bodies to enforce these rights, which are dictated procedural laws to channel such actions.
- Landa (1996), states that the task of the Constitution is to ensure democracy against authoritarianism, not only understanding it as an instrument of government, with respect to independence and the checks and balances that aid the historical period of civil and military governments, but also as an instrument of peace and development, respecting the civil and social rights of citizens.
- García Belaúnde (1996), says that, tentatively, we can distinguish the following periods of the Constitution in Peru:
- Of formation and institutional consolidation 1830 - 1860. The whole country was marked by territorial problems, military ambitions, fiscal poverty, internal chaos. In 1860 began a slow ordering of the young Peruvian State. Of stability, apogee and crisis from 1860 to 1920. With it the Peru of the nineteenth century ends, the so-called "beautiful era". From 1920 to 1979. It is the beginning of social and constitutionalism. tendencies to stability. It contains only two constitutions: that of 1920 and that of 1933, from 1979 onwards. Modernization with ups and downs. In this period, both the 1979 Constitution and the 1993 Constitution can be framed.
The Omeba Legal Encyclopedia (1993), focuses on us that they are a complex of legal and extra - legal norms,… that govern the life of the State, organizing its powers, delimiting its functions and establishing the rights and guarantees of the inhabitants and the State.
Its historical projection is a consequence of the rationalization of the modern State: it coincides with the decline of authority in the medieval Empire, the Renaissance and the division of the Christian religion and the validity of the capitalist economic system, which forms a propitious field for the appearance of status..
The social normality and the legal normativity of the Constitution must coincide in the historical moment of the appearance of the second; otherwise, it may be in danger as a legal norm and its challenge or violation is only a matter of time.
conclusion
From the Latin "cum" with and "statuere" establish). Set of basic positive legal norms established in a fundamental law that organize a society, establishing: the authority, the form of exercise of that authority, the public powers, the limits of those powers, and guaranteeing the political and civil liberty of the individual.
Bibliography
Cabanellas de Torres, Guillermo. Dictionary of usual law. 23rd edition. Buenos Aires, Heliasta., 1994.
Cabanellas de Torres, Guillermo. University legal dictionary. 2nd edition updated, corrected and enlarged. Buenos Aires, Heliasta, 2004
Chanamé Orbe, Raúl. Modern legal dictionary. Lima, San Marcos, 1995.
Cueva Sevillano, Alfonso, editor. Great legal dictionary. Lima, AFA Importers Editors, 2000.
Legal Editions. Constitutional legislation. Lima, 2003.
Omeba Legal Encyclopedia. Buenos Aires, Driskill, 1993.
Figueroa Estremadoyro, Roman. New Peruvian Constitution: Compared, commented and agreed. 2nd edition. Lima, Editorial Inkari, no date.
Flores Polo, Pedro. Fundamental legal dictionary. 2nd edition. Lima, Grijley, 2002.
García Belaúnde, Domingo. "The new Constitution of Peru: Judicial Power and constitutional guarantees". In Landa, César y Faúndez, Julio (Editors). Contemporary constitutional challenges. Lima, PUCP, Faculty of Law, Master in Constitutional Law - University of Warwick, School of Law, 1996.
García Calderón, Francisco. Dictionary of Peruvian legislation. Facsimile edition of the second edition (Paris, 1879). Lima, Grijley, 2003. Volume I, p. 533.
García Rendueles, Manual, sj Political Constitution of Peru and Native Communities. Without place, Amazonian Center of Anthropology and Practical Application - CAAAP, 1983.
Landa, César and Faúndez, Julio (Editors). Contemporary constitutional challenges. Lima, PUCP, Faculty of Law, Master in Constitutional Law - University of Warwick, School of Law, 1996.
Masías Zabaleta, Demetrio. Legal Dictionary. Arequipa, Editorial Adrus, 2004.
Rodríguez Domínguez, Elvito A. Constitutional procedural law. Lima, Grijley, 1997.
Rubio Correa, Marcial. Constitution: what to put on and what to take off. Lima, DESCO, 1992..
Torres and Torres Lara, Carlos. The Economic Constitution in Peru (The economy according to the Constitution of 93). 2nd edition. Lima, without editorial, 1998.
Villar, Cecilia (Editor). Espasa legal dictionary. Madrid, Editorial Espasa - Calpe, 2002.
Wikipedia.com Accessed 01/17/2007.
