Summary of Jordi Ferrer: Reflexiones críticas sobre el neoconstitucionalismo

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In this video, Jordi Ferrer provides critical reflections on the neoconstitucionalism doctrine, which he considers a harmful and misconceived ideology. Ferrer outlines the main elements of neoconstitutionalism and discusses the incorporation of morals and values into constitutional systems. He also analyzes the concept of moral gaps, internally and externally applicable norms, and the need for a paradigm shift in our understanding of the law. Ferrer challenges the idea of the neutrality of law, argues that the abandonment of positivism is due to the inseparability of law and morality, and questions the view that judicial rulings on constitutionality are constitutive. Finally, the speaker critiques the declarative nature of certain sentences in neo-constitutionalism and calls for an open discussion on these issues.

  • 00:00:00 In this section, the speaker begins by acknowledging the justified strike of the education sector in Spain and expresses solidarity with the protest. He then introduces the idea of the neoconstitucionalism doctrine, which he describes as a contagious and harmful ideology based on several misconceptions. He notes that while there is no unified doctrine, there are several theses recognized as neoconstitucionalism. The speaker's intention is to identify these theses and provide critical reflections on them.
  • 00:05:00 In this section, the speaker provides an overview of the main elements of neoconstitutionalism, which he categorizes into four main ideas. These ideas include the hierarchical superiority of the constitution, the idea that the constitution permeates the entire legal system, the notion that constitutional principles connect to moral values, and the rejection of legal positivism's claim that identifying the law does not require moral evaluations. The speaker goes on to explain the nuances of each idea and how they relate to the incorporation of moral values into the legal system.
  • 00:10:00 In this section, the speaker discusses the incorporation of morals and values into constitutional systems, as exemplified by the iusnaturalismo and positivismo incluyente theories. The argumentation jurídica is seen as central, with the identification of the law now requiring judgment of the compatibility of laws with moral values incorporated into constitutional systems, as opposed to the neutral identification of the law under positivismo jurídico. The speaker argues that this shift towards incorporating moral values into constitutional systems requires the abandonment of the positivismo jurídico theory, as it is no longer possible to identify the law without also considering moral values. The importance of the argumentation jurídica in determining the applicable law is seen as a central aspect of the neoconstitucionalismo movement.
  • 00:15:00 In this section, the speaker discusses the argument that the incorporation of moral language in contemporary constitutions does not necessarily imply a moral commitment in the legal sense. While it is clear that contemporary constitutions include moral language, the use of terms such as dignity, free development of personality, and degrading treatment should not be automatically assumed to have the same definition in the legal context as in the moral context. The speaker gives an example of how the use of the term "organ" in the legal context differs from its biological or anatomical meaning. Therefore, the use of moral language in legal contexts may have a different or specific legal meaning, which does not imply a moral commitment beyond the legal realm.
  • 00:20:00 In this section, the speaker discusses the incorporation of moral terms and suggests that there are three possibilities. First, moral terms may refer to an abstract, universal morality. Second, they may refer to the moral beliefs of society at the time the law was created, which is subject to change. Third, they may refer to an objective, true morality. However, the speaker argues that this discussion is purely interpretive and not theoretical. He suggests that there is no point in asking what all of the terms mean generally and that each instance should be interpreted based on its specific context. The speaker also argues that this is a legal, rather than theoretical, discussion.
  • 00:25:00 In this section, the speaker discusses the concept of moral gaps, which refers to the gaps that exist in the moral system, even in the critical or social aspect, where the moral or values do not provide answers to all the imaginable and morally relevant cases. He argues that the existence of moral gaps is necessary for the expression of constitutional values through principles, and although the regulation through principles instead of rules necessarily poses the problem of identifying the response in a specific case, there is nothing structural that makes it necessary for constitutional provisions establishing fundamental rights to be interpreted as principles rather than rules. The interpretation of whether a provision is a principle or a rule is an interpretative decision, and the notion of defeasibility can affect the validity, external applicability, or internal applicability of the norm.
  • 00:30:00 In this section, Ferrer discusses the concept of internally and externally applicable norms, explaining that a norm is internally applicable when it regulates the case and externally applicable when another norm establishes that it must be applied. He notes that these distinctions can open the possibility for the defeat of a norm's validity or applicability. Ferrer also delves into the idea that neoconstitutionalism demands a change in theory to account for constitutional values, arguing that it is not the systems themselves but rather our interpretative decisions that drive the need for a change in theory. He claims that the abandonment of positivism in favor of neoconstitutionalism is not a result of new systems, but rather of dogmatic interpretative decisions.
  • 00:35:00 In this section, the speaker discusses how our current constitutions, many of which are centuries old, require a paradigm shift in our understanding of the law. The shift to neo-constitutionalism has changed the way we understand and analyze our constitutions and the law. The focus on the importance of legal argumentation and the need to distinguish between different cases of difficulty in applying principles is emphasized. The speaker also touches on the difficulty in identifying a neutral interpretation of the law, as it requires interpretation, which is a decision-making process and therefore not neutral. The definition of what constitutes law also impacts the possibility of a neutral interpretation.
  • 00:40:00 In this section, Jordi Ferrer discusses the idea of the neutrality of law and the incorporation of objective morality into the Constitution. While some argue that the presence of objective morality means that law cannot be identified neutrally, Ferrer argues that this is a misinterpretation as objective moral propositions can still be true or false independently of the debate around the truth value of moral norms. He also notes that the incorporation of objective morality into the Constitution does not necessarily mean that legal theory has to be normative, but rather that it can be descriptive and still incorporate those values. Ferrer criticizes the idea that legal theory must be normative, suggesting it is a sign that moral objectivists lack mechanisms of neutral knowledge of objective morality.
  • 00:45:00 In this section, the speaker discusses the issue of moral or epistemological subjectivism and the inadequacy of positivist theories to account for the reality of constitutional law. According to the speaker, the reason for abandoning positivism is not the impossibility of maintaining a neutral theory of law but rather the abandonment of the thesis of the conceptual separation between law and morality. Neo-constitutionalism is presented as the culmination of this process, calling for a normative theory of law that recognizes the inseparability of law and morality. The speaker also challenges the view that judicial rulings on the constitutionality of a law are constitutive, arguing that they are not a result of knowledge but of decision-making, since there is no neutral identification of the law.
  • 00:50:00 In this section, the speaker argues that the idea of the declarative nature of certain sentences within neo-constitutionalism is not compatible with the impossibility of knowledge of the law. The speaker believes that theories that hold both ideas are unfounded and that internal arguments within these theories are incoherent and insupportable. Although he does not claim to defend legal positivism, he argues that many of the prominent authors' arguments against positivism are unfounded. The speaker acknowledges that his presentation aimed to initiate discussion and is open to listening to feedback and criticism.

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