And neoconstitutionalism Global Law: Contemporary Legal Theory

SUMMARY:

I. Introduction .- II. Global Law: The Legal System Contemporary .- III. Neoconstitutionalism: Challenges and risks .- IV. Conclusions.

I. INTRODUCTION .-

Near the vortex of world globalization has brought not only the import and export of new technologies between the unexpected, but that has brought about a change and development of all kinds. In that sense, has led to the creation and / or the promotion of new disciplines or legal theories such as: global and neoconstitutionalism right.

Little has been said, at least locally, about the same. However, we believe that the knowledge, study and analysis are very important because we are "members? of the global situation and therefore, his actions and consequences affect us (for or against, as the case) to a greater or lesser extent. Consequently, the present work is aimed at unraveling the nature and content, as well as outline some comments by way of reflection and conclusion.

II. GLOBAL LAW: THE ORDER JUR? DICO CONTEMPORA? NEO .-

First, we need this new law stems from the ius gentium, is based on jus cogens (right of States "to meet the requirement?) And ius commune (applied mainly to the global legal business), to meet the challenges against social evils such as terrorism, international criminal organizations, widespread corruption and "order? hegemonic, mainly.

Luis Maria Bandieri, says that the "Universal Law? had its origin (in the Middle Ages) in Roman law compiled by Justinian: The Civil Corpus Juris was the ius commune of the time, later became the law of the European Union and now the global law.

Global law is strengthened in the early nineties (Prosper Weil, says that the order fought the existence of a "legal crisis multiforme? International regulatory system, which was then suffering from the world) through the minting of new paradigms as liberal democracy, free trade, right of self determination of peoples, inviolability of borders and cooperation between the great powers. To initiate a frank later development in this century.

The globalization of the "new legal order?, Breaks into the world legal scenario is equivalent to: autonomy, spontaneity, stability and balance new, more social, less government, no boundaries and always under the base and the full respect of fundamental rights which gives the human being as part of the new legal subject: Humanity.

This "global legal theory?, Conforms precisely, as a counterpoint to the dogmatic, appealing to a more just, democratic and free, based on the principles of personality, equality, solidarity, subsidiarity, integration and authority in a world recognized complete, complex, different, but united.

Juan José Martín Arribas said that the "Global Law?, Imposes obligations and duties of higher rank, such as the protection of human rights, environmental protection, the proliferation of weapons of mass destruction and the fight against terrorism , which incidentally, are of common interest and concern the world as a whole, only satisfied globally.

Umberto Leanza says that the notion of common heritage of mankind has basically a material element of common justice and the increasing degree of humanization that is getting the international order. Significantly, the constant weight who are reaching their values ​​and principles of solidarity, as well as the pursuit of common goals or community and, secondly, the emergence of new legal paradigms.

The Global Law has a strong rebound as fast evolution, the same as (revalues ​​the human being, not only worry about their welfare, but for its survival on the basis of universality, diversity, interdependence and decentralization) is the subject of current and open discussion, development and application in almost all corners of the Earth. In it, the processes of democratization and humanization, prose ceased to be inert to go to achieve the greatest degree of acceptance, legitimacy and recognition in the international community.

The "new law? is characterized by its supremacy over the "other rights? (No derogation is permitted), and defending the interests of the international community (general and common), promoted international solidarity; configurations on the basis of: treaty law, institutional, international case law and international custom.

Ergo, the law tends to the horizontal global, unity, democracy, sustainable development, cooperation and solidarity of the states of the world through a dynamic peace, while eliminating injustice. The same, containing paradigms, principles and values ​​above that will address new global challenges.

This "World Law? has given us also recent 'Rights? such as: the international responsibility of international organizations, international procedural, integration, universal human rights, European Union, neoconstitutionalism, the environment, development, bio international law, new technologies, sports, international economic law, the Treaties, etc..

According to Rafael Domingo, this new legal order principled, is principles: i) The law emanates from the person, ii) no rights without liberty, no freedom without law, iii) The dignity, equality and justice as its columns, iv) Protect the harmony of peoples, v) The global law promotes social pluralism, vi) is rational, common, secular, vii) has legitimate power, viii) Meets the standards and act in solidarity, ix) The legal reason is authority, the rule of law, authority, and, x) is strongly repelled, advance with authority.

Finally, faced with the unstoppable advance of this new law, which we welcome, we witness the propensity for global judicialization of international jurisdiction (International Criminal Courts and Law of the Sea, for instance), the increased importance of international jurisprudence and promoting universal undisputed as the defense of human rights. Furthermore, this "World Law? suggests future paths waiting to be covered, to form an alternative legal doctrine, sustainable legal philosopher, historically and legally viable functional.

III. Neoconstitutionalism: CHALLENGES AND RISKS .-

Second, we note that the origin is mainly Germanic neoconstitutionalism (State dazed and trapped by the contemplation of the atrocities of Nazism, had no more to be amended), specifically in the first case of the German Federal Constitutional Court in 1958, and subsequent development in the U.S., Italy and parts of Latin America.

It appears as a "healthy constitutional awakening or awareness for fundamental rights and where they stand as a central axis of the legal system, and as the basis of universal foundation of indisputable legitimacy? (Presented, despite its name, not as a new but certainly current or new legal theory of global radiation), "thank you? the limited role of legal doctrine to explain the justification (or fairness) of fact or law in this postmodern situation.

This current law is reaffirmed also as a way like the tune to a recent legal order as a result of globalization almost universal in the world, named "Global Law? (Understood in turn as a "new? Legal order that opposes a radical defense of the dignity, solidarity, equality and justice, legal security of the person, as pillars early and accurate legal institutions and political parties strong, transparent and broad credibility.)

Neoconstitutionalism as constitutional process (which limits state powers and / or protect the rights) of the system or legal life (a) for the State: i) According to Antonio Baldassarre, "Put to the Constitution as a new order of values ?, and ii) According to Victor Bazan, "As the response to the tension between democracy and constitutionalism ...?; leaves behind his formal role and to some extent quasi-waiting, to" transform? in more active and leading part of it and focus in a much more just the life of society today.

The "new? Constitutionalism is already present in our constitutional stage. In this regard, recent (and some not so) recognition of "constitutional rights? as: i) "to due process?, ii)" the new eight forms of habeas corpus?, iii) "the truth?, iv)" legal personality? and the principle v) "ne bis in idem? (In Peru) and vi) "habeas corpus rights or collective protective multiple diffuse or homogeneous?, (In Argentina), give strong evidence of this.

But neoconstitutionalism ("Contemporary constitutional justice?, Say, and also called: post-positivism, guarantors, constitutionalism, strong, charged, pledged or securities specified constitutional interpretation, constitutional rematerialization, ideology or political philosophy and legal philosophy) is more than that , since according to Paolo Comanducci "not only describes the achievements of the constitutional process, but that welcomes and encourages their defense and expansion, and also implies a kind of trilogy consisting of theory, ideology and methodology? .

The neo constitutionalism aims to improve the rule of law, subjecting all power (legislative and executive branches included) law and appealing to the constitutionality, not the legality that is, that puts the constitutional court as ultimate guarantor and any matter evaluate and decide legal vicissitudes of a new political, economic and social-global. We, therefore, with the advent and enthronement of (but not consolidated or fully developed), "State Constitutional Paradigm?.

Needless to say there is no "neoconstitutionalism only", but several, in line with the differences in historical and comparative realities of each State. Neoconstitutionalism, however, will develop more or less at par, in addition, the new regulatory framework is the Global Law.

Before the arrival of neoconstitutionalism, the constitutional jurisdiction of the Peruvian State should know face the "challenges? that implies (which is nothing small or simple, in addition, the current situation demands it) and that are basically: i) recognize new rights principled ii) Find ways to Overcome constitutional legitimacy, iii) To be properly trained and sensitized in the light of this new "constitutional theory? (Not just the operators of the constitutional court), iv) To achieve a refined legal argument, v) Have, strictly and in full, and administrative personnel-judges-qualified (via "real, transparent and objective merit public tenders? , for example).

It should also be noted that also involves face "risks?, Such as: i) Exacerbation constitutional interpretation, ii) the constitutional authoritarianism tendency to" constitutional truth as unique, exclusive, exclusive and final?, Iii) Corruption or constitutional "jurisprudence of interests?, iv) The extreme casuisticalización law to the detriment of its original ordering function, and v) the moral interpretation of the Constitution, which aperturaría a vast range of subjectivism.

IV. CONCLUSIONS .-

Briefly exposed to topics concerning global law neoconstitutionalism, we believe that it is reflection, satisfaction and commitment. i) Reflection, it is admirable and remarkable as an international liberal policy, creates a formula for progress unquestionably generalized to all corners of the globe, ii) satisfaction, because they are theories about which we have to congratulate the effect generates positive where it applies, and iii) Commitment, because these legal theories not only remain in effect with the implementation of the same, and require a permanent defense, dissemination, access to mainstream continuity and consolidation.