The Importance Of Constitutional Control Of Reasonableness Of Normative Acts Of A General Nature

The importance of constitutional control of reasonableness of normative acts of a general nature

There is no doubt that for the purpose of a rule being recognized within a legal system, it must be sanctioned in accordance with the constitutional procedures established by a national constitution through the competent body. When a rule has exceeded each of the required requirements, it is said that the principle of legality has been complied with. Thus, the principle of legality has become a fundamental tool in public law. In the sense that it is in this work, thanks to the principle of legality, the judges – whether through diffuse or concentrated control – carry out a validity examination of the norm, verify the formal requirements, their procedure to sanction and thecompetence of the organ that dictated it.

However, constitutional justice has noticed that it is not sufficient to limit itself to the verification of a mere formal control, but that the subject or substantial that effectively regulates the rule is in accordance with the National Constitution must also be examined. On the matter, Bidart Campos (2001, P.508) points out that the formula of the principle of legality is incomplete, since the formality of a norm is not enough, but that it is necessary that it responds to certain sufficient value guidelines and for this purpose, the material content of justice must be insertedAt the beginning of legality. With this landfill, the author expresses that the principle of legality should be formulated as follows: "No one can be forced to do what the law" just or reasonable "does not send, or deprived of the law" just or reasonable "does notprohibits ".

Thus, it is observed that constitutionality control has been refined and expanded by leaps and bounds starting from the Leading Case, Marbury V Madison until a constitutional control of material validity of the normative acts of the normative acts in order to guarantee the validity of the axiologyof the National Constitution, born in most countries as a remedy against the excesses in which the legislative and executive power incurred by making decisions.

Finally, it is not redundant to point out that this type of constitutional control although it has its detractors, for reasons that will be exhibited in the following chapters, it is applied almost universally in the legal world both in the countries of the Common Law and for those of continental lawand even in the main international constitutional courts, such as the Inter -American Court of Human Rights, the Court of Justice of the European Union, among others.

Reasonableness as a limit of rights limits

As it has been briefly observed, the current constitutional control of the normative act should not be limited to verifying only formal validity, but must go further and examine in turn, substantial validity, when this validity is fulfilled, it issays that the normative act is reasonable. Before continuing, it is relevant to point out that the reasonable adjective can be preached from three nouns: from a legal statement (principles, norms, definitions, etc.);of a legal agent (judges, lawyers, legislators, etc.);and of an act consisting of interpreting, applying or establishing legal statements (administrative, judicial resolutions, etc.). (Atienza, 1987, pp. 191 and 192). That is, reasonableness can be applicable to qualify a rule, a judge or resolution. However, in the investigation only reasonability will be addressed as an adjective of a legal statement, specifically in terms of normative acts of a general nature.

In this way, as a result of the above, it is possible to question: how is it determined whether a normative act is reasonable or not?. This question is born when on the one hand, there is the power of the State to regulate a certain law, and on the other hand, a restriction or omission -present work will focus rather on the field of rights restriction since omission requires anothertype of study- of rights that affects a community or even only one person. Thus, a duality between the rights and power of the State is raised to regulate them.

However, even in the event of being before a delimitation of rights, it is not enough to consider that a normative act is not reasonable, since it must start from the premise that the State in order to achieve the "common good" (Understood as a set of conditions that enables members to achieve the greatest degree of validity of democratic values and personal development) dictates norms that regulate or regulate rights, which sometimes can produce a delimitation of these. Comment by dante villasboa: paraphrase of Sagués D. Constitutional volume 3

According to Toller (2005):

“Rights have (…) an end to which they tend, which gives their value and dignity in the ordering, since they have been recognized with a certain sense: to be the technical-legal medium so that the person and the community achieve a certain goodfundamental. Consequently, the rights are actually delimitable or determinable: through the interpretation and constitutional decision it is possibleso that transposing that sphere of regular action will reveal an abusive exercise ”(pp. 1258-1259).

For, Bidart Campos (2001) "The reasonableness consists of an axiological assessment of justice, which shows us what fits or is according to justice, which is sufficient reason" (P.805).

In this regard, Saggese (2010) points

“… Reasonableness is not an autonomous concept, to the extent that it does not constitute for the legislator an additional limit to the constitutional clauses themselves, but is presented as a condition that must be respected at the time of regulating the rights recognized there, and ofsuch a way that constitutional rights operate as true limits to the exercise of legislative action ”(P. 49).

For its part, Bernal Pulido (2003) expresses that reasonableness is a constitutional mandate of restriction that is addressed to legislators, who must comply with limiting fundamental rights (P. 517 et seq).

For the purpose of achieving a better understanding of what is stated here and as a small advance, with the following example you can understand better when a normative act is reasonable or fair. In that sense, a normative act that regulates an absolute prohibition of smoking tobacco to improve health, would be extremely unfair and unreasonable since it limits the rights in an absolute way, however, a norm that restricts the places of sale or establishes restrictions in theadvertising if reasonable.

In that order of ideas, reasonableness must be taken into account first, by the authority itself when dictating the norm, then citizens must analyze whether said rule is bearable and finally, the judges must decide whether the rule isreasonable, otherwise, it will be up to declare that rule as unconstitutional. In summary, it is possible to conclude that any normative act emanating from the State that grants a sufficient reason for its existence or expedition is reasonable or fair, the latter must necessarily establish a correct delimitation of the rights established in the Constitution.

Reasonableness and legal principles

The reasonableness is not explicitly contemplated in almost any normative provision (including Paraguay), its development has corresponded to jurisprudence and doctrine, following this, the type of legal entity that constitutes is not determined.

Now, the most rooted expression in the right that one has accustomed to reading or hearing, both in the doctrine and in jurisprudence, is that reasonability occupies the rank of principle. Now, examining and studying the principles to determine whether or not one of these is effectively.

Therefore, without contradicting the thesis that reasonableness is a principle, throughout the investigation, it will be limited to pointing out that reasonableness constitutes a guarantee, that is, a necessary requirement for the material validity of a normative act,And that together with legality, the fundamental guarantees of any rule of law (Saggese, 2010, p. 49).

The reasonableness and proportionality test

According to what has been pointed out, for the purpose of verifying whether an act is reasonable or proportional, the jurisprudence in a pretory manner has created different models, which are nothing other than tools, guidelines or argumentative criteria, which serve to verify the content orMaterial validity of a standard, calling the main models: reasonableness test in the United States and proportionality test in Germany.

In that sense, first of all, it should be clarified that while it is true, the application of these tests have been growing in relevance in constitutional jurisprudence in most legal systems, both in Anglo -Saxon law and in the continentalBeing only tools or argumentative methods, the introduction in each of the legal systems has very different origins and justifications, which will be developed in the relevant part of this research work.

However, what is clear is that both Anglo -Saxon and Continental law use the reasonableness test for the same main objective, which is to solve rights conflict problems through an examination of media and ends, controlling suchway, the regulation imposed by the legislator through normative acts.

Cayuso (year) defines the reasonableness test as follows: "The reasonableness control is, therefore, the instrument that the Judiciary possesses to set the scope of the exercise of police power" (P.fifteen).

On the other hand, Stone and Mathews (2017) expose in a simple way when the reasonableness test should be applied when indicating “… the proportionality analysis is activated once reasonable indications have been presented that a government measure has infringedA right ”(s/p).

Thus, with the application of reasonable control or analysis through any of the different models or argumentative tools, the constitutional judges intend to defend the material constitutional control of rights, thus reducing the margins of discretion in the delimitation of rights.

Reasonableness and proportionality as synonyms

Finally, it is not a minor issue than the title opted for research work is: “Model proposal of reasonableness test…”, since this seems that initially the proportionality test model is already being excluded, howeverIt is important to clarify that this is due because even when some conceptual differences can be made between the notions of reasonability and proportionality, in the doctrine and jurisprudence, a more general and multivalent concept is usually admitted that covers beyond the criteria and formulas usedTo control the content of the act, this concept is called: "Judgment or reasonable test".

In the words of the author Juan Ciancardo (2004), the models of reasonability and proportionality tests share a common concern, which is to ensure the supremacy of normative acts that are related to fundamental rights against the necessary legislative regulation (P. 25).

While it is true that the analysis or test models have determined their own criteria or argumentative tools, it is glimpsed that the main thing that unites both models is the possibility of control by the organ in charge of carrying out constitutional control, andwhether diffuse or concentrated, to do so on the matter, substance or content of state regulatory acts, which often leads to doctrine and jurisprudence to treat them as synonyms.

Therefore, it is for this reason, that it has been chosen in the research work excluding in the title to the "proportionality test" and using a more comprehensive term such as the "reasonableness test", as the doctrine does.