Positivismo, derecho y justicia en la constitución colombiana de 1991

Abstract

The Colombian legal system is based on the primacy of the political Constitution, in accordance with the approaches of the so-called juridical positivism, whose maximum exponent was Hans Kelsen, where the other norms (Laws, decrees, ordinances, etc.) are found In a pyramidal order that gives it its formal validity. However, from new theoretical and juridical developments in the international order, the Constitutional Court and the legal operator perform an abstract and material control on the formal subordination and on the substantive contents of the norms, excluding them from the legal order or ignoring them when they presuppose that do not know the founding norm or go against the duty to be-formal and material-of the constitutional or supraconstitutional order. That is to say, the internal norms of the Colombian State cannot ignore the constitutional and conventional order as a binding international norm under penalty of being excluded from the legal order. This is not enough for the legal order and its application by judicial and administrative operators to transform the material social reality of the constitutional paradigm. In accordance with the above, the study of Colombian law is dealt with by comparing it with the international legal system, the validity of the positive norm and the scope that judicial operators give through hermeneutics and effective application in solving social problems, highlighting the limitations that the legal order itself contains to transform social reality.