Abstract

PORTOCARRERO QUISPE, Jorge Alexander. The Role of Formal Principles in Determining the Scope of the Constitutional Control. Rev. Derecho Estado [online]. 2011, n.27, pp.75-102. ISSN 0122-9893.

The central argument of this article is that the tension between the legislation and the constitutional adjudication could be resolved with the aid of formal principles. Traditionally this tension has been resolved thought self-control arguments like the judicial self-restraint and the political question. These arguments are not enough to determine the scope of discretion of the law-giving organ and to justify the legitimacy of their decisions. Formal principles would not only determine the margin of the decision both of the law-giving and adjudication organ, but also justify the legitimacy of those decisions that come from a decision-making procedure. Both aspects are necessary conditions of the institutionalisation of the reason and are the core of the authority of law. In this paper, we will refer substantially to the tension between the Constitutional Court and the legislation, and how the so-called formal principles can provide a feasible solution to this tension.

Keywords : Constitutional rights; legislation; constitutional adjudication; judicial self-restraint; political question; theory of principles; formal principles; competences; Radbruch's formula; the argument of injustice.

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