El neoconstitucionalismo principialista en la Asamblea Nacional Constituyente de 1991
From observing the teaching and practice of law, it is found that a theory of principles has not been developed in accordance to the national context. A section of the doctrine assumes them as a main normative paradigm, with political (rational legitimacy criteria), axiological (value precision) and...
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Format: | Article |
Language: | Spanish |
Published: |
2014
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Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=5331238 |
Source: | Revista Prolegómenos. Derechos y Valores de la Facultad de Derecho, ISSN 0121-182X, Vol. 17, Nº. 33, 2014, pags. 27-42 |
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Summary: |
From observing the teaching and practice of law, it is found that a theory of principles has not been developed in accordance to the national context. A section of the doctrine assumes them as a main normative paradigm, with political (rational legitimacy criteria), axiological (value precision) and legal (material validity criteria) functions; the other one indicates that they are auxiliary criteria of judicial activity. This confusion has a negative impact on the required legal reasoning for a correct and effective administration of justice in the context of the social state and justifies a detailed study of the principles notion assumed by the 1991 National Constituent Assembly of Colombia. In addition, a weak domestic doctrine has been limited, in general, to reproduce the ideas of major law philosophers written outside of the requirements imposed by the Colombian political model. Both confusion and decontextualization justify the main objective of this article: to facilitate the comprehension of the legal principles in the Colombian social rule of law, their nature and functions by researching of the will of the constituent. This will aid to overcome the contradictory jurisprudence on the subject and the incorrect comprehension of Article 230 of the Constitution. For this purpose, a documentary research method of the National Constituent Assembly of 1991 official journals, the microfilm rolls that rest in the General Archive of the Nation and interviews with some former constituents was used. |
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