“Separation of powers and constitutional judges: an approach to corrective functions”. Paper for the IX Congress of Constitutional Law. Oslo, Norway. June 2014

31 mayo, 2014


Dear friends:

We enclose finally the English version of our paper for the IX Congress of Constitutional Law: “Separation of powers and constitutional judges: an approach to corrective functions”.

Our Workshop about Separation of Powers will take place on June 19th in Oslo, Norway.

We include below the PDF version too.

Best  regards,

Edwin Figueroa Gutarra






Edwin Figueroa Gutarra[2]



Introduction 1. Hamilton and objections to powers status. 2 Correction of power acts. 3. Requirements of constitutional interpretation in the corrective function of constitutional judges. 4. Jurisdictional State? 5. Features of a Neoconstitutional State 6. Balancing and rules. Final ideas



The formal concept of separation of powers, since the first ideas of Montesquieu, has traditionally meant a proposal of separation in a strict sense, avoiding the dangerous concentration of all power in a single establishment. Thus, according to the thinker of Brede, we have separate powers according to the functions assigned by law and Constitution: an Executive branch that strictly governs, a Legislative power whose duties are limited to the production, repeal or modification of laws; and a Judiciary that judges in specific conflicts.

However, this does not imply a sufficient idea of ​​what we really understand as a material conception of the separation of powers, whose meaning, in this XXI century view, necessarily requires modifying the understanding of the concept and notion of “balance”, from roles assigned to each of these powers since the set of values​​, principles and guidelines that inform our Constitutions.

We propose in that way, broadly speaking, to develop some important concepts about the functions of corrector power of constitutional judges, since constitutional justice, in relation especially to formal acts of the Legislative- production of laws- mainly because between the Judicial and Legislative branches takes part what we call the constitutional corrective justice.

Such control function cannot be too open: rationality and reasonableness characterize the use of premises in the constitutional interpretation of law and argue a set of basic traits that identifies balancing in the context of a new model of Neoconstitutional State, whose worth is in material identification assumptions underlying in all Fundamental Documents, understood as our Constitutions.


1. Hamilton and objections to powers status

It is pertinent here to refer to the old discussion of Hamilton[3] in “Federalist 78″, from which was outlined the premise of a need to control formal acts of the Executive and Legislative branches since judicial review of other powers acts, owned by the Judiciary.

The proposal of Hamilton was widely criticized because a power that fulfills the condition of satisfaction of majority principle, as Legislative, elected from a regular act of deposit of the popular will, was regularly controlled, since the roles of judicial review, by those, constitutional judges, who didn’t represent such principle. On the contrary, judges were, according to these critics, the opposite of majority principle. In fact, judges in historical systems were chosen by the Executive and weren’t elected by popular will, as did happen with representatives to Congress.

The bounded contradiction seemed to be more legitimate since judges were not really designed by the expression of means of direct democracy, as will of citizens, but by a foreign formal act- a decision of the Executive- that didn’t characterize the popular vote. Consequently, the review asserted that legitimacy of that foreign control, necessary for a substantive democracy, was not warranted.

As a justification against these criticisms, Hamilton observed several issues in Federalist 78: it was not to put one power over other, indeed not, noted the American thinker, because legitimacy of Legislative decisions precisely obtained validity, it means compatibility with the Constitution, since a judicial review about constitutionality of Legislative decisions.

Now, we can add a critical idea about judges functions: an outline of self-regulation of powers. It would mean that Legislative could amend its own decisions and that this power develops a kind of self restraint principle, or an exercise of self-control.

Prima facie this is an idea that can achieve a range of acceptability: we might think that a decision issued by the Executive branch, in legitimate exercise of regulatory functions, or a rule issued by Legislative, within the powers granted by Constitution and laws, could even be incompatible with the constitutional order, and that this power, after a self verification, decides a change of position, varying law under control. This would involve the modification of incompatible matters in these wrong decisions, building a constitutional relationship with those material values ​​implied by binding effects of Fundamental Rules, properly the ones of a Constitution.

However, it is not strictly a situation that occurs more often, quite simply because there is no consensus of necessary democracy for this effect. It is usual that Legislative, with precise exceptions, justifies a regulation having the force of law, in the sense that they have complied with formal procedures for the production of law.

The legislator would be right if there is a justification of change and law varies according to Constitution principles, because it is a must a necessary material validation of laws with Constitution. We can’t just visualize only formal aspects of laws as the simple existence of rules, which expresses only legality. We should demand a condition of legitimacy, understood as a phenomenon of compatibility with Constitution, which should express a requirement of validity, a task which is not a regular function, many times, of Legislative.

We see, then, a contradictory scene: these who apparently don’t satisfy the condition of majority principle- constitutional judges- amend jurisdictionally positions of who historically justifies the requirement of majority.

Here we accept the argument of Hamilton in the sense that it is precisely this judicial review an effect of legitimizing Legislative decisions, in this road of validation, improving their sphere of legitimacy with regard to Constitution, making necessary adjustments, sometimes not applying a law, if we choose the judicial review of control of law’s constitutionality, by judges, or expelling a law, since Kelsen’s perspective, from the constitutional order, either through a Constitutional Court, because of contradiction of laws with material values of Fundamental Law.


2. Correction of power acts

In addition to these concepts, it is worth to develop another question: do we break the theory of separation of powers of Montesquieu if we say that a power can correct formal acts of another one?

Our answer would be negative, as we reaffirm the dimension of the concept of separation of powers through more advanced material notions of balance of powers. Our thesis proposals are of a real balance of powers, not just a formal one[4] in the sense of a formal premise, proposing a material conception, tool that is identified by truth –minded statements, predictability and universality.

Indeed, powers cannot be real if we limit ourselves only to the linguistic statement of separation of powers. Following Guastini,[5] the notion of rescuing the interpretative meaning of concept of powers balance, runs through this function of constitutional judges reserved for Judiciary, many times expressed at high Constitutional Courts decisions, whose task is an encompassing concept of constitutionality in its widest dimension.

Can we think on other contrary functions, let’s say, that Legislative, in this perception of balance, correct actions of the Judiciary? Or rather, that the Executive works it?

We believe that fields of powers must be defined in this respect and we answer the question in an affirmative way: Legislative has the power of correction regarding, for example, the career of judges, and well is able to outline too the requirements of the case to determine conditions of entry, stay and end of judicial function.

Likewise, the Executive branch holds also the power of initiative in shaping the Judiciary status. We must note that in these cases there is a regulatory exercise of other powers, because it is too a duty of such branches a descriptive task of the conditions affecting judges careers as a professional work in State functions. This also means a kind of constitutional control but just a formal one.

The judicial function correction in the field of the constitutionality of laws has first a descriptive expression, but it is in the material scope of correction in which we distinguish a broader analytical context, while we understand besides in this material function a perspective that aims to find the characteristics of principles of Unity of the Constitution and practical concordance, that primarily identify a judicial interpretation.


3. Requirements of constitutional interpretation in the corrective function of constitutional judges

The requirement of judicial interpretation of Constitution, and therefore the rules that are issued on the basis of constitutional rule of law, following Konrad Hesse’s ideas,[6] raise a number of minimum requirements regarding characteristics of this interpretation.

In this sense, a law issued by the Legislative requires accordance with Constitution, building both, law and Constitution, a single structure. This is the so called expression of principle of unit of Constitution. It means a law cannot support a particular interpretation, out of Constitution, because it justifies, according to Bobbio’s [7] ideas, a single unit with Constitution.

Under this basis, then there are no free areas of constitutional control but standards requirements for laws that are subject of revision, and whose formal dimension demands unity with Constitution as a material identification and adaptation of these precepts with Fundamental Law.

Similarly, the requirement of a standard of practical concordance of laws with Constitution demands compatibility and consistency with the Basic Law: compatibility, because a law cannot be inconsistent with the Constitution itself, and coherence, in the sense of connection with the most important constitutional values, among the ones we find the principle of arbitrariness prohibition, the defense of human life, the freedom of individuals, including input assumptions to constitutional order. In this sense, if a rule of Legislative, properly a law, does not fulfill these minimum requirements of constitutionality, it may not be valid and corrective power of judges would be required.

In another aspect, the idea of ​​functional correctness as a principle of interpretation, tells us, objectively, that if these functions of Legislative branch, are not fully developed, in accordance with Constitution, then it is authorized corrective function of judges.

Here we must emphasize: there is no need of correction of tasks if these powers are exercised fully according to Constitution, within the range of reasonableness and fairness of legal rules.

In this way we must be even more restrictive: if these functions are carried out properly, there shouldn’t be, absolutely, no corrective role of constitutional judges and there wouldn’t be a kind of control, since constitutional justice, of other spaces and functions of other branches. And if an invasion would happen, against Constitution values, we would put judges in a negative status, disturbing really the functions of other branches.

Following such idea, if it would be so, this would create a situation of illegal hiperactivism and it would be not compatible with premises that demand a restricted or balanced judicial activism. Activism is necessary, because we do need an active role of judges in necessary defense of fundamental rights of people, and restricted activity, because such activity must be exercised in a balanced, prudent and correct scene, imbued with judges with a functional proper vision of correction.

In that same horizon of ideas, the premise that Hesse called integrative function, assigns to constitutional interpretation and idea that decisions of judges must look for social peace and much more in the sense that constitutional interpretation should aim to adequate social results, to achieve the necessary balance between proceedings and society.

Finally, the idea of ​​supremacy of Constitution, as another principle of constitutional interpretation that John Marshall in 1803 called “supremacy clause of the Constitution” in the case Marbury vs Madison,[8]  is an expression that laws and Legislative aren’t over Constitution, as Fundamental Law states as final rule, prevalent by nature, over other all kind of law standards.

Thus, constitutional judges will establish standards under their control to validate, in the broadest sense, whether the formal and material content of a law, agrees to the purpose of constitutional interpretation. Moreover, judges must presume constitutionality of laws, and only if after that attempt to save its constitutionality, that purpose is not feasible to implement, judges are authorized to exercise their corrective power, which must be developed as a last option through a necessary judicial review.

In the same way, constitutional judges are allowed to reinterpret the law to find its potential compatibility with Constitution, or shall use the figure of constitutional mutation for an interpretation according to Constitution. These are duties of social purpose of judges, assigned by constitutional interpretation.

We should insist on other idea: the interpretation of judges doesn’t imply, we ratify it, a modification of the literal sense of law, because the correction task is about interpretation, not about formal contents modification. In this sense, we find reasonable what that first power invokes: formal modification of laws is a competence of Legislative branch, not of judges. On the other side: material interpretation can be developed by judges.

However, judges themselves can reinterpret the law, we mean, involving these tasks formal contents only if a material interpretation takes place, reassigning then an interpretation value that does not imply a formal modification of the law.

And here we assume a complex premise: the Legislative requires autonomy functions in their regulating tasks. The premise here is acceptable, but we insist on our thesis: we valid that if that Legislative function does not respect, at least, the main guidelines of constitutional interpretation principles, then constitutional judges must observe in their task of correction, an action of legitimacy control that involves the analysis of other powers decisions.


4. Jurisdictional State?

Going back to another approach that must be exhaustively analyzed, we should ask about the prevalent role that is assigned to constitutional justice: can it perhaps imply, according to Schmitt’s[9] outline, the proposal of a Jurisdictional State? That is, can we conceive perhaps an incipient form of State in which judges, without being rulers, exercise acts of government when it takes place this correction of Legislative formal acts?

We do not believe that is our central proposal about these main guidelines regarding to interpretation of the corrector power that judges represent. Judges only judge and resolve according to the concrete situation they must judge.

There is no idea here to exceed the role assigned to judges or to increase their functions beyond the proposal of a corrective function, harming the functions of other branches of a State, because if this would happen, then it’s a reality an excess of roles, and regular function spaces of other powers would be invaded, changing radically Montesquieu’s  theory, who finally built a proposal for a balance of powers which represents the ethos and pathos of separation of powers.

Following these ideas, it is important to point out the role of the legislative function. A proposal for broad content of the formal exercise of legislative power, is expressed in the design of authentic interpretation of laws. The purpose of this position informs that if Legislative created the law, it is this same institution who which assumes, by own right, the authentic interpretation of the created rule.

This proposal is a syllogistic and logic proposition about law creation: it is the author of law who is able to define the scope of law. The force of this proposition is essentially subsumed from a literal interpretation about formal contents of law, literally defined.

However, it is not just the proposal of literalism we defend in this brief essay, but a required item of material hypotheses to formulate of correction competences. In that sense, we believe important to state that if Legislative creates the law, then we have a phenomenon that express that the property of the historic creation of law is lost, because constitutional interpretation demands new duties according to Constitution.

In fact, incorporated the law into the juridical system, regulatory effects of law escape from its creator and need finding a necessary position in the consensus principles of constitutional interpretation we have argued above. Then law states far from its creator, and this one loses his original condition of creator.

We believe that if these proposals perform, constitutional judges become true guardians of the Constitution and not lords of the Constitution,[10] as far as a Fundamental Law does not belong to a single power but it is a common statute regarding all levels of society.

In conclusion, if the Legislative branch properly exercises its functions about laws under Constitutional regulations, then there is no need for any control over that legislative task, and judges are prevented from intervening, unreasonably, in that space of development functions that represents an exclusive responsibility of Legislative.

On the contrary, if functions are not exercised under this so called material system of values ​​which informs the Constitutional State, then the task of judge’s control is necessary. Here we find the role of a supplementary exercise, of integrating vocation and exceptional action of constitutional control by the Judiciary.


5. Features of a Neoconstitutional State

Let us now analyze, following the Spanish master Prieto Sanchis,[11] what are the central elements of constitutional interpretation in that State we just call of neoconstitutional features, which represents the essence of the constitutional State, meaning certain characters that complement the constitutional function of control.

A first draft of the constitutional character of a Neoconstitutional State should be more principles than rules. This idea considers that if the state of the nineteenth century was predominantly a Legislative State, actually the twentieth century represents the role of a Constitutional State, and the twenty-first century of constitutional interpretation in the broadest sense of neoconstitutionalism, as a way of understanding the phenomenon of conjunction between State and constitutional interpretation.

Indeed, the Legislative State identifies definitive commands, we mean, the laws as rules on the purpose of identifying and verifying a formal role of normative statements elements.

In addition to this, laws have a tendency of becoming insufficient in front of reality and cannot be considered deficient ones. We explain this idea: laws are built for solving all kind of situations but in fact, they usually solve a part of problems and principles are needed, as far as they mean a role of reasonableness and optimization mandates. This is the key aspect of a new way of supporting the context of justification of judicial decisions, with great emphasis in the examination of law’s constitutionality.

Now, let us reaffirm a central concept: if the law is sufficient to define the constitutional control of such law under review, no corrective function of judges will be performed. In this aspect our idea expresses a strict positivist duty in the judiciary: as long as the conflict is defined by laws, then we have just a discussion about laws and rules, not necessarily of principles.

Reality, however, tells us that this is not the common course of constitutional control and therefore, the principles become the best means of resolving disputes in constitutional review.

And in the same way: can principles become new rules? Atienza[12] admits that once balancing between principles occurs, the interpretation of future cases, similar to the previous case, will tend to prevail as a new rule of interpretation between principles.

However, we must not forget that just by taking balancing as a relationship among principles, this expresses an axiological or mobile hierarchy,[13] in essence, this refers to the changing conditions of a case that balancing represents. In that way, no definitive solution is placed but essentially conditions and circumstances of a case, define a balancing solution. In this way, there is no definitive solution in balancing but decisions that consider a surveillance of cases conditions, so there are no impositions and there is no absolute case.

Is there then a chameleonic function in balancing in this task of judicial review? Yes and no; yes, because the variable options of the changing conditions of a legal problem can be widely different ones, as it is true that the factual variables may indeed be different; and we must also induce a negative response to the question above, while balancing would assume a perverse role if stakeholders of conflict would try to accommodate their arguments to force an interpretation of the conflict conditions.

We should imagine, if this would be true, we mean, if stakeholders would be able to accommodate their factual arguments in the best way for an unreasonable solution of a judicial problem, then perhaps would be real the valid observations of Garcia Amado,[14] regarding the subjective nature of balancing.

Let’s observe, now, that balancing essentially would aim at a margin of rationality. Balancing and rationality would try to work together but it is important to consider that rationality is mainly a character of law, while reasonability is a prevalent condition of balancing. So, balancing is much more reasonableness than rationality, understanding these characters as areas of weak and strong reason in the way that Garcia Figueroa[15] and Pattaro present about the creation and application of law.

In this regard, it should be noted that balancing is not strictly a weak reason. We hold it is so no strong reason in its creation phase, it means, it has no origin in rationality and definitive rules because it appears as a proposal that in appearance seems to be a weak reason, it would born  apparently in a weak context: a kind of indetermination field. Nevertheless, balancing builds a projection to be a strong reason in constitutional interpretation.

This is the case of principle of human person dignity. We can agree on near explanations about this principle and its invocation may vary according to the law of which we talk about. The rules of use of clothing in West, for example, may seem inconsistent in terms of comparison with Arab customs. Each society constructs the concept of dignity according to their own ways of life, according to principles that build these societies, and in this, the range of variation of social constructions can express different forms of manifestations.

Despite the above ideas, we see that the only approach to value dignity of human person, in spite of this apparent weakness when it is conceived, we mean, the phase of creation of law, changes into a strong reason in its application phase, and changes into a thesis of strength when it becomes a jurisdictional mandate.

It is the objective expression that we can analyze in schemes of Garcia Figueroa and Pattaro, while balancing would hardly accuse a thesis of weakness in its creation and not in its application phase. Of course, a mandate of reasonableness by a Constitutional Court is in fact a final decision that is expressed as a strong injunction that cannot be flouted or disobeyed, under the exigencies that judicial function represents.

Once expressed these ideas, then appears a second feature of interpretation in the neoconstitutional State, and we can actually hold more balancing than subsumption as a significant feature of such State.

We started our explanation of these features arguing more principles than rules because it is the most expressive character of a Neoconstitutional State hallmark. This second character is a corollary of the assertion of the first character, just because principles are naturally expressed in balancing while laws are identified in subsumption.[16]

We can, at this point, order an idea: is subsumption valuable and necessary in our juridical systems today? We would insist that the answer admits different levels of conditions. Subsumption is a final task if a dispute can be solved with the help of substantive and procedural rules of law.

This might be a valid proposal of Kelsen[17] model expression and yet we would notice that the outline of the famous Austrian thinker, in purpose of certainty in law, determined that principles were not the model of rationality that this formal system in its objective expression demanded. In this way, then balancing would assume a necessary integrative role of interpretation, and reaffirms the all-encompassing nature of constitutional interpretation.

On the other hand, to reaffirm questionings to subsumption, we must note also that the character of final discussion which in turn took legal positivism, was never absolute. The same positivist theory admitted the idea of ​​empty fields in law, and it was necessary the resort of a proposal as the rule of recognition to understand the possibility of a formal solution against gaps in the scene of law subsumption.

In addition to these ideas, we can score another point of interest: if Legislative creates the law and presents a roadmap of issues subsumed within the range of law, can the legislator balance? Manuel Atienza[18] presents the idea of ​​an argumentative outline on the pre legislative phase, where the legislator can perhaps determine the best way to project the meaning of the rule in its process of creation. We consider balancing exercise, also for legislator, is too a natural task, but in fact it is fundamentally binding on the specific case of constitutional control solution that provide judges in their corrective function.

A third proposed feature by Prieto Sanchis ranges in the constitutional control in all law areas. We agree that the proposal is itself a controversial idea and let’s go to a specific case: if the Supreme Court ends a legal case, let us agree that this decision shows usually to judges a vertical interpretation. The idea of ​​stare decisis may lead us to feel a Supreme Court interpretation not just an advice but a required and obliged position.

We cannot discuss, in fact, that the Supreme Courts positions in our countries represent the highest court of law enforcement, and nevertheless, following the thesis of this work regarding the lack of areas of constitutional control, we must assume, in respect for the rule of law, that even in relation to the Supreme Court exists a corrective role by constitutional justice, based on the labor of a Constitutional Court.

Since this perspective there are no free areas of constitutional control and therefore the correction function by constitutional judges is all-encompassing.

From another perspective, a fourth character we find, always according to Prieto Sanchis, may be termed as a prevalence of judicial interpretation over that developed by legislator. This notion has been defined lines up but there should a precision in order to validate what we have sustained: the tasks of the Legislative through laws, are usually an ex ante duty, that is, takes place before the interpretation of the law under control. On the other side, the judicial interpretation of judges is standing usually ex post, as it aims to consolidate the interpretation on a material control function after reviewing the contents of law.

Before law, following ideas of Guastini, the Italian master, we have a field which induces us to consider a requiring interpretation. Once the standard has been legitimized via judicial interpretation, we can infer that the rule is an interpreted statement.

Finally, balancing expresses, in this Neoconstitutional State, a plural constellation of values ​​rather than a panorama of ideological homogeneity. Let’s see it in its real context: law can be identified, most of the time, as a rule, a definite term, and a statement that only gives us one choice of interpretation, which has become the single correct answer within the law against a specific situation defined.

The Law Historical School of von Savigny[19] strengthened this idea by placing as one of the first methods of interpretation the literal one. It could only be found an explanation to the law from the perspective of the law itself, expressed its own contents, and since no other different perspective. The interpretative option in this case could only mean what the rule literally said.

The immediate background of this statement can be also found in the same Napoleonic Code of 1804, understood as maximizing the law in its formal dimension, so that law professors of the nineteenth century tended not say they taught law but taught the Napoleon Code.

This way of thinking the law in absolute terms had certain exceptions, as the Marbury vs Madison case, [20] a point of beginning of judicial review. Nevertheless, the nineteenth century just represented, regularly, a consummation of the political thought of French revolutionaries: it was necessary to change the arbitrary Ancién Régime power by new means of control and we can ask about this proposal: didn’t we change an old tyrant- the King- by a new one- the literal Law itself?

Certainly French courts of the eighteenth century adopted the line of voluntarism on expressing the meaning of law. There was not consolidation of separation of powers as we now understand this figure and even less a glimpse of its substitute: balancing powers.

Expressions such as the one of Louis XIV: ” L’ Etat c´est moi ” (” I am the state ” ),[21] persuaded us that there was a unique power absorbing the three powers into one, and although the figure of the King was a kind of executive power, in fact it explained the State management in the hands of one person.

Similar situation occurred a little earlier, in 1610, in the famous Bonham case[22] under Judge Edward Coke who, before the misconduct of King James I to influence the case about a sanction to Dr. Bonham for an irregular exercising of his career, specified in its landmark decision that the judge should be prepared in the field of artificial reasons of law, requiring preparation for legal responses according to principles of Common Law, while it should concern the King his kingdom issues.

It was obvious that this answer did not satisfy King James I, who after many years achieved the dismissal of Judge Coke, in apparent retaliation for his role in Bonham case. Notwithstanding the foregoing, it is valuable a constitutional vision of Bonham case because it was the first solid attempt to separate the constitutional jurisdiction of the scope of King’s decisions.

The law was of a foggy nature by then: the separation of powers could not be assumed in broader dimension functions and was reduced to the power of the King, to the outline of an apparent contradiction that meant the concept of the absolute power of King, and the more consistent answer was the elimination of these glimpses of vertical power.

Even the Constitution of John Lackland in the thirteenth century[23] is a valid Law to contextualize other legitimate attempt to limit the power of King, before the claim of the King’s subjects for a minimum respect to minimum rights as due process of law.

The information we develop, therefore, express the strengthening of the homogeneity of rules, understood as a unique basis of law, and if the law was the anchor element of the entire legal system, nothing should menace its existence. The law expressed usually one unique and definitive term and did not support a different interpretation.

Socrates had the opportunity to save his life against an unfair decision imposed on him by the apparent crime of polluting the thinking of youth.[24] Supporters of the Greek thinker, creator of mayeutics, attempted to facilitate the escape of their master to save the life of their mentor, and the response of the Greek philosopher was emphatic: if the law was not respected, despite the unfairness of decision, then it was not possible to understand the existence of city-states, one of whose foundation principles precisely lays in the respect for law.

Expressions of this nature, we can see also in Antigone,[25] a Sophocles tragedy, about two apparent duties faced: first, the order of King Creon of not burying the body of Polynices, a traitor to city principles (the invader body laid at the gates of Thebes after attempting to take the city); and second, the filial duty of Antigone to bury her brother. She does not obey Creon and is sentenced to the death penalty for defying the will of the King.

Our expressions here describe a specific situation: the imperative aspect of King’s order and the subsequent challenge. This last one could only mean the death of the offender, in this case, Antigone.

In this same perception, French literature is expressive: in “Les Miserables” by Victor Hugo,[26] the Inspector Javert cannot assimilate that his greatest enemy – the former convict Jean Valjean – could have saved his life and therefore decides suicide by jumping into the waters of the Seine river.

The scheme of Javert was very punctual if we find an angle of literal interpretation: enemies were enemies and did not support different ranges of understanding. The action of his enemy Jean Valjean, who beyond all question, saves his life before the French revolutionaries kill him, takes Javert to the conclusion that if he could not respect the message that law assigned to him, even to incarcerate his fiercest enemy, then he could not save his own life.

The developed issues assume a same trend of a final message: the law is one and cannot handle contrary situations, and is homogeneous because it expresses only a single command. If the interpreter tries to decrypt the message of law, he will be able of finding only one right answer and that was the only content to consider.

The balancing in the XXI century, understood in the plural dimension and constellation of values ​​supported in the field of interpretation, may oppose regularly two principles: the right to life facing death penalties imposed by States; the right to freedom of expression against the right to privacy or honor, the right of free development of personality (a person could smoke if that is his decision) versus the right to health, regulated by the state under the line of necessary restrictions on the exercise of that right, especially in closed public places. Therefore, values ​​can clearly enforce balancing, whose essence lay latent in the homogeneity of its ideological contents.


6. Balancing and rules

Following these statements, does balancing affect the prescriptive sense of laws? We don’t think so. By contrast, balancing complements laws created by Legislative, assimilating its contents of material terms with Constitution principles. Balancing doesn’t’ work only on formal contents of laws but legitimates rules, so it is far from the nightmare possibility that described Hart,[27] who was inclined to the noble dream expressing law enforcement.

Balancing includes, then, a strong opposition and transcendent conflict situations that the idea of ideological homogeneity of law doesn’t’ guarantee. We must ourselves ask at this point: do we assign in this explained way to Constitutional Courts, under these circumstances, excessive power and consequently we affect the capacity of legal decision makers as Legislative involves?

We do not believe in an extreme complex answer: balancing contains limits in its exercise of corrector power of Legislative acts. Indeed, Garcia Amado tells us that before balancing, it must take place a correct determination of the proper content of rights at issue, and then it is no longer necessary to balance. Then, following the same trend and guidelines, without renouncing to our thesis, balancing is required to express true contents of laws, we mean, balancing helps to correct determination of rights, since a rational and reasonable vision.

Thus, balancing cannot be irrational or unreasonable. It is not irrational because its expression against law under control really seeks a way to supplement the standard itself of law. Indeed, it is not a valid claim that balancing goes against the law itself. That is not the mission of balancing: its first task is to respect the presumption of constitutionality of laws. We must be emphatic here.

However, if after that effort trying to save the compatibility of law with  Constitution this doesn’t occurs, we are facing then a necessary second stage of balancing, which is the possible reinterpretation of law, via constitutional mutation, or we must yet lead to a next more difficult  stage( which is the non-application of the rule ), or finally, we should note the most complex area of all ones: the expulsion of the rule of law of constitutional system by a Constitutional Court, whose functions, we insist again, are not repealing the law, because this task will always be reserved only to the Legislative exclusively.

In line with this assertion, balancing is not unreasonable precisely because reasonableness is the main field of expression where balancing works. We will agree that balancing main line cannot regularly follow the idea of rationality and however, it is its natural task space gaining legitimacy from an adequate statement of its reasonableness.

And how do we properly achieve that expression of reasonableness? We believe that for this proposal, we cannot ignore the main characteristics that identify an argument based on balancing.

The balancing argument cannot be contradictory, we mean, it must be consistent, and must therefore express a suitable logical thinking. It would be a mistake to consider if the constitutional judge decision expresses a manifest contradiction with the rule laid down by the Legislative. Before that, we must attend to necessary exercise of presumption of law constitutionality and to verify its compatibility with Constitution.

Likewise, as we concluded above, the balancing argument requires to be coherent, it means, it cannot go against with anchor principles of constitutional law as it must satisfy a first principle; the prohibition of arbitrariness.

Let’s reaffirm this proposal in the following way: the theory of separation of powers and the necessary balance between them requires, first, no excess of a power menacing another one. We mean it is required to avoid arbitrariness of one of these powers so that others can perform their duties without restriction, that’s one of the main proposals of the theory of separation of powers. Notwithstanding this, we must admit that the arbitrary acts of management power, is not an extraneous variable and, on the contrary, it takes place more often than we think. Along these arguments, the balancing requirement of coherence is necessary.

Additionally, a balancing argument, in this control of laws, must satisfy the condition of prevalent, we mean, there should be better reasons in this balancing proposal. Satisfaction should be high and there must be better reasons and in this scene, the best reasons must win.

In this statement, we should support a rule that Atienza[28] proposes in his Good Arguer Decalogue: sometimes it is necessary to give up the argument we hold. We would add to this that if the opposite argument is better than ours, nothing really should be argued against this second better argument.

In this prevalence is expressed the balancing argument because it is not a matter of imposing but rather choosing the best solution among all possible situations. Ii is that the intrinsic nature of a mandate of optimization that is defined as a statement that urges to do something, in the best possible way, within the legal and factual possibilities. So there is a rational character in balancing and this will ensure the best possible outcome.

In this prevalence we have hold as third expression of a balancing argument, following Mac Cormick’s ideas,[29] there are minor situations that cannot fail to observe: for a prevalence of the balancing argument, our claim should not face problems of ambiguity, or excess of meanings, or vagueness because of the absence thereof.

Similarly, the balancing argument must be universal, we mean, the idea to propose balancing should aspire to be applied always to circumstances of a case and to other many ones that are similar. In the same range, this argument must be consequentialist, while demands a response that provides an adequate solution to the problem in question and so does not exceed the dimensions of a problem in order to impose a solution that perhaps would even cost so much for society in the sense of too negative situations.

So, there is in this way of thinking balancing, no uncertainty in applying the principles of balancing, in response to Commanducci.[30] This premise of the Italian master would be true if the balancing does not comply fully these balancing roles we assign: consistency, coherence, universality and consequentialism.

In the same sense of denial, the principle of proportionality, a procedural expression of balancing, does not express a “degradation of law”, as provided Fortshoff,[31] mainly because it is not the task of balancing to reduce the roles of the legislator but validating legitimacy from the basic premises of constitutional interpretation.


Final ideas

The concept of separation of powers evolved from the initial thesis presented by Montesquieu in his classic work “The Spirit of Laws”, set of ideas that since 1748, the year of its publication, proposes that power must not be concentrated in the same hands.

Today the separation of powers itself expresses a different dimension where the key element is a material equilibrium in this theory trough constitutional justice. Aiming at achieving a necessary balance doesn’t require a literal redefinition of functions of Executive, Legislative and Judicial branches, but a new idea of material relationshipsbetween them, setting them between real checks and balances.

Along these concepts, corrective power of constitutional judges considers necessary a control of rules from other branches if they are built against Constitution material principles. This statement does not involve putting a power over another but just consolidate those necessary functions of powers in their formal and material contents.

Achieving this high mission of constitutional judges cannot be exempt from certain areas and parameters: it is required the interpretation of corrective power through principles of constitutional interpretation: unit of Constitution, practical concordance, functional correctness, integrated function, and supremacy of Constitution.

The application of these principles is consistent with fields of a model of Neoconstitutional State, in which substantive principles traits are more principles than rules, more balancing than subsumption, no excuse for constitutional control of law areas, prevalence of judicial interpretation over that which develops the Legislative, and the existence of a pluralistic constellation of values ​​instead of ideological homogeneity.

Under the use of these tools we are not facing an uprooting of the functions characterizing powers but building a new form of balance between them.

Approaching final ideas of Hamilton, the corrective role of judges in the trial of the constitutionality of laws, does not impose a power over another. On the contrary, the legitimate functions of powers fully identify the principles of a constitutional state model, with features of neoconstitutionalism in this XXI century, in which the exercise of power must be distant, with emphasis, from arbitrary behaviors. This is an axiological mandate that we are involved to face.



[1] Paper presented at the IX Congress of the International Association of Constitutional Law “constitutional challenges: local and global”, held in Oslo, Norway from 16 to 20 June 2014.

[2] Doctor in Law. Superior Judge at Constitutional Court of Lambayeque, Peru. Professor at the Judicial Academy of Peru. Visiting Professor at the University of Medellin, Colombia. Professor of the Constitutional Area at San Martin de Porres University in Chiclayo, Lambayeque, Peru. Scholar of the Spanish International Cooperation Agency for his participation in courses “Protection proceedings of fundamental rights” Montevideo, Uruguay, 2011; “The international guarantee of human rights and its impact on the constitutional law of the States”. Montevideo, Uruguay, 2010; “Constitutionality of laws” Cadiz, Spain, 2009. Scholar at the Human Rights course at Washington College of Law at American University, Washington DC, USA, 2009. estudiofg@yahoo.com

[3] HAMILTON, Alexander; MADISON, James, Jay, John. The Federalist. Economic Culture Fund. Mexico, 1957. In GARGARELLA, Roberto. La dificultad de defender el control de constitucionalidad de las leyes. Isonomía. 6, abril de 1997.  p. 56

85 papers were published between October 1787 and May 1788 under the pseudonym Publius, to motivate citizens of New York to ratify the Constitution in Philadelphia.

[4] Cfr GARGARELLA, Roberto. La dificultad de defender el control de constitucionalidad de las leyes Op cit. p. 55-57

[5]  Cfr. GUASTINI, Riccardo. Disposición vs Norma. Lima- Perú.- Palestra Editores, 2011. p. 136.

Guastini called “willingness” to each statement that is part of a policy document and “rule” to each statement that constitutes the meaning or significance attributed.

[6]  HESSE, Konrad. Escritos de Derecho Constitucional. Traducción de Pedro Cruz Villalón. 2da. Ed. Madrid: Centro de Estudios Constitucionales, 1992. p.  45.

[7] BOBBIO, Norberto. Teoría del Ordenamiento Jurídico, 1960.  En Introducción al Derecho de José Luis del Hierro. Editorial Síntesis, Madrid, 1997. p. 95.

The notion of Bobbio indicates that a juridical system can not be dispersed. Therefore, there is a single unit, and inconsistencies or contradictions must be addressed into a coherent scene. Finally, there are no definitive empty fields. Against them, there is a character of fullness.

[8] Marbury vs Madison. Judgment of Judge John Marshall. 1803.

Rescuing the concept of normative supremacy clause of the Constitution, the judgment of Judge Marshall noted:

“If a law is contrary to the Constitution, if both the law and the Constitution apply to a particular case, so that the court should decide the case according to the law, disregarding the Constitution, or, as without regard to this law, the court must determine which of these competing systems must regulate the case. This lies in the essence of the exercise of justice. If then the courts are based on the Constitution and it is superior to any ordinary provision of the legislature, the Constitution, and not such ordinary act, must govern the case to which both apply … “

[9] PLAZAS VEGA, Mauricio. Ideas políticas y teoría del derecho, Bogotá, Temis y Universidad del Rosario, 2003, p. 263., en referencia a La defensa de la Constitución de Karl Schmitt y la réplica de Hans Kelsen, Quién debe ser el defensor de la Constitución.

In our view, the debate generated during the crisis of the Weimar Republic in Germany, centered on the same point as the Hutter der Verfassung (or defender of the Constitution): both a Constitutional Court and judges of the Judiciary implicit subjects resulted in the defense of the Constitution. Therefore the only way distinction was not substantive. The controversy extended to the concept of the state and democratic legal forms.

Vid also SCHMITT, Carl y KELSEN, Hans. La polémica Schmitt-Kelsen sobre la justicia constitucional. El defensor de la Constitución versus ¿Quién debe ser el defensor de la Constitución?Estudio Preliminar de Giorgio Lombardi. TECNOS.  Madrid, 2009.  p. I- LXXII

[10] The German expression Hutter der Verfassung is adopted in the German doctrine under the idea of ​​a guardian of the Constitution, in direct opposition to the notion Herr der Verfassung, or lord of the Constitution, expression that would show a function or notion of property, and an incompatible quality with the principles of protection of constitutional order. Vid LANDA, César. Tribunal Constitucional y Estado democrático. Palestra Editores. Lima, 2007. 3ra edición. p. 20.

[11]  PRIETO SANCHIS, Luis. Derechos fundamentales, neoconstitucionalismo y ponderación judicial. Palestra. Lima, 2007. p. 123

[12]  ATIENZA, Manuel. A vueltas con la ponderación. En La Razón del Derecho. Revista Interdisciplinaria de Ciencias Jurídicas, N° 1 – 2010. Facultad de Derecho de la Universidad de Lisboa. p. 9

[13] PRIETO SANCHIS, Luis. Tribunal Constitucional y positivismo jurídico. Doxa 23(2000). p. 180

[14] Vid. GARCIA AMADO, José. El juicio de ponderación y sus partes. Críticas de su escasa relevancia. Materiales de estudio Academia de la Magistratura Perú 2010. Razonamiento Jurídico. XIV PROFA. Lima. p. 47-91.

[15]  Cfr  GARCIA FIGUEROA, Alfonso y GASCON ABELLÁN, Marina. La argumentación en el derecho. Algunas cuestiones fundamentales. Palestra Editores, Lima, 2003. p. 68.

The scheme presented by Enrico Pattaro, professor of Bologna, which Figueroa Garcia uses to develop its approach, lies in 4 models: Kant, Thomas de Aquino, Viehweg and Perelman, and the Theory of Legal Argumentation, TAJ standard. Distinctive phases of creation of law and application of law, and the senses are assigned: Kant (strong-strong model), St. Thomas de Aquino (weak strong.), Viehweg and Perelman (weak-weak), and standard TAJ (weak – strong)

[16]  Cf ENGISCH, Karl. El problema de la subsunción.  En Introducción al pensamiento jurídico.  Ed. Guadarrama. p. 63

[17] GARCIA BELAÚNDE, Domingo. Kelsen en París: una ronda en torno al “modelo concentrado”. En El control del poder. Homenaje a Diego Valadés. Peter Häberle, Domingo García Belaúnde. Coordinadores. Universidad Nacional Autónoma de México. Instituto de Investigaciones Jurídicas. Serie Doctrina Jurídica. Num. 583. México, 2011. Tomo II. p. 95

[18] ATIENZA, Manuel. Las razones del derecho. Universidad Nacional Autónoma de México. 2da edición. 2005. p.18

[19] SAVIGNY, Federico Carlos. Sistema de Derecho Romano actual (Traducc. Jacinto Mesía y Manuel Poley, Madrid, Editorial Analecta) 2004. p. 258.

[20] Marbury vs Madison. Judge John Marshall. 1803.

Rescuing the concept of normative supremacy clause of the Constitution, the judgment of Judge Marshall noted:

“If a law is contrary to the Constitution, if both the law and the constitution apply to a particular case, so that the court should decide the case according to the law, disregarding the Constitution, or, as without regard to this law, the court must determine which of these competing systems must regulate the case. This lies in the essence of the exercise of justice. If then the courts are based on the Constitution and it is superior to any ordinary provision of the legislature, the Constitution, and not such ordinary act, must govern the case to which both apply …”.

[21] L’ Etat c´est moi”. Louis XIV was also called the Sun King. Although the appointment is accused of apocryphal, the phrase could be derived from the idea of ​​”the good of the state is the Glory of the King “. The sense of the phrase is linked to absolutism politician.

[22] Bonham case vs. Henry Atkins. Judgment issued by Judge Lord Edward Coke. 1610.

Part of the judge’s ruling Coke, the alleged interference with King James I in the judgment, stated:

“It is true that God has endowed his Majesty with excellent science and great natural gifts , but his Majesty is not learned in the laws of his kingdom, and judgments concerning life , inheritance ( … ) should not be decided by the natural reason but by the artificial reason and judgment of law, which is an art which requires long study and experience before that a man can come to dominate , the right is the golden rod of virtue and the extent to sentencing the causes of his subjects “

[23]  The so-called Carta Magna de las libertades was issued on June 15, 1215 in London, England.

Article 52 of the Constitution:

If anyone without legal judgment of his peers, has been dispossessed or deprived by us of their lands, castles, liberties or rights, will be restituted back immediately. ( … )

[24]  Plato tells in his Apology of Socrates, this could avoid death sentence but condemned Socrates accepted the imposed penalty. This figure must be contextualized in the sense outlined by Socrates as if the laws of a state are not obeyed City, and therefore the decisions of the judges are not followed (360 jurors voted for the death penalty to a fine and 141 ), then there was no City State.

[25] Sophocles tragedy was projected to the year 442 BC. Antigone, sister of Polynices, whose body could not be buried for alleged treason, challenges the authority of King Creon and finally buries the body of her brother. The dichotomy of this tragedy rescues the duality between the orders of the King, though certainly illegitimate, and moral duty born of family ties between Antigone and Polynices. Antigone is ultimately condemned to death penalty. This tragedy explains the disobeying of a law in front of a moral imperative.

[26] The novel was published in 1862 and the author was inspired by Vidocq, a French criminal who was rehabilitated and ended up opening the French National Police.

[27] HART, Herbert. Una mirada inglesa a la teoría del derecho americano: la pesadilla y el noble sueño. En AA.VV. El ámbito de lo jurídico. Barcelona. Crítica, 1994. p. 327-330. En LANDA ARROYO, César. Los precedentes constitucionales. JUSTICIA CONSTITUCIONAL. Revista de jurisprudencia y doctrina. Año IIII. No. 5, enero- junio. Lima, 2007. p.  34


[29]  HERNANDO NIETO, Eduardo. Módulo Razonamiento Jurídico. Academia de la Magistratura Perú. XV PROFA. 2011. p. 17

[30]  Cfr. COMMANDUCI, Paolo. Principios jurídicos e indeterminación del Derecho. DOXA 21-II. 1998. p. 89-104

[31]  FORSTHOFF, Ernst. El Estado en la sociedad industrial, trad. de L. López Guerra y J. Nicolás. Fundación Coloquio Jurídico Europeo. Centro de Estudios Políticos y Constitucionales. 2013.


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OSLO CONGRESS Paper Separation of powers and constitutional judges 30march2014





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