Unconstitutionality and Derogation

Abstract

The traditional problem of the existence of unconstitutional norms will be explored with the purpose of dissolving it, showing the dependence of the way in which norms are deemed to exist and the concept of “norm” that is assumed. Two notions of norm will be analyzed: the one that identifies them with non-interpreted normative provisions and the one that identifies them with interpreted normative provisions. Taking advantage of the distinction between legal system and legal order, two models of the result produced by the acts of promulgation and derogation of norms will be examined. On such bases, an attempt will be made to demonstrate the conceptual independence between the unconstitutionality of a norm and its derogation. Then, we will evaluate the different systems of constitutionality control. The analysis will close with a critical study of a recent ruling by the Argentine Supreme Court of Justice.