A Bit of Realism about Unconstitutionality and Derogation

Abstract

This article reconsiders some theoretical issues involved in the debate about unconstitutionality and derogation that has been published in volume number two of Discusiones. In particular, this work purports to defend, from a legal realist perspective, (1) the viability of the kelsenian tacit alternative clause, (2) the soundness of the idea that declarations of unconstitutionality are constitutive of the constitutional invalidity of a legislative norm, (3) the thesis according to which the dichotomy between refined and unrefined legal system has some conceptual pitfalls and its application to actual legal systems is dubious, (4) the substantial correctness of the guastinian thesis about the relationship between formal and material validity, (5) the viability of the thesis, advanced by several realist authors, according to which the law controls the admissibility of enact norms’ logical consequences, and (6) the urge to introduce, within the analysis of the relationships between derogation and unconstitutionality, an exploration of how, within legal practice, people handle cases in which the chronological criteria and the hierarchical criteria converge in order to give prevalence to one norm over the other.