Sistemas normativos y conflictos constitucionales

¿es posible aplicar derechos fundamentales sin ponderar?

Abstract

Normative Systems and Constitutional Conflicts: ¿Is it Possible to Apply Fundamental Rights Without Balancing?

This paper seeks to answer the following question: is it possible to solve fundamental rights conflicts without balancing? To answer this question we will describe the theory which, to address constitutional conflicts, proposes to reconstruct normative systems. This theory is developed in the work of Moreso, Mendonca and Martinez Zorrilla and presents itself as an alternative to balancing. We will conclude that, even though it might be a good complement to formalize judicial decisions on constitutional matters, it can´t entirely replace balancing, which would always be present underneath. This can be clearly seen in cases where fundamental social rights claim validity, in whose context balancing proves to be conceptually necessary.