Neoconstitutionalism

definition, critique and concretization of fundamental rights

Abstract

This article analyzes the current discussion on the theory of legal norms in the context of post-positivism or neoconstitutionalism. It argues that the term neoconstitutionalism does not refer to a single normative theory, but to a complex and plural construction of methods, legal argumentation, philosophy, and doctrine. In this sense, the overcoming of the positivist legislative state by the post-positivist constitutional state has brought about profound changes in the theory of norms, as it conferred applicability or normativity to principles and fundamental rights. From the critique of positivism and neoconstitutionalism itself to neoconstitutionalism, in a dialectical relationship, a rational, ponderable post-positivism is constructed that respects the incidence of rules and subsumption; it is a constitutional filtering in contrast to constitutional fundamentalism. Finally, it should be emphasized that neoconstitutionalism is not a theoretical-normative construct that, in a phenomenological chain of cause and effect, excludes the model of rules and gives rise to a deficit of rationality in law, necessarily allowing an opening for judicial decisionism.