Higher Institute of Science and Technology of Mozambique

Higher School of Law

Constitutional Law I

Support Text

Theme I

Introduction to Constitutional Law

1. The political fact and the State

The phenomenon or political fact presents two faces, one ontological and the other
deontological.

As an ontological reality, the political phenomenon is a mere fact that happens.

in a society.

As a deontological reality, the political phenomenon is presented clad in

certain values that allow for judgments to be made about their justification.

We already know that the political fact is a human activity related to the
acquisition, maintenance and exercise of political power and that it occurs in the State or
political society.

The state is defined as a people based in a territory in which it establishes, by

own authority, a (relatively) autonomous political power.

The analysis of this definition reveals the elements or conditions of existence of

State: (i) the people (ii) the territory and (iii) the political power.

However, the State can be viewed from two basic perspectives:

As a State - Power - political power manifested through bodies,

services and authority relations.

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 As State-Community - society constituted by human beings, in
which exercises a power to achieve common ends.

These two perspectives are inseparable, presenting themselves as 'two sides of the same coin.'

same coin." And the unit of the State-Power with the State-Community presents itself
as a legal unit, that is, a unit ensured by legal norms.

2. The State and the Law

Law is a normative order composed of general legal norms.

abstract, mandatory, and assisted coercive protection measures that regulate human life
in your social relations. And the legal norm is an imperative, general rule of conduct
abstract, imposed coercively by the State.

The relationship between the State and Law can be understood in multiple ways.

First of all, it is necessary to consider that the birth of a State reveals itself
always as a legal phenomenon, since it is the Law that shapes the elements
(or conditions of existence) of the State. In fact, the belonging of a portion of
territory to a State depends on legal norms - norms of international law;
the individual's belonging to the people of a State also depends on the law expressed in
nationality laws, being that right that turns men into citizens; the
the conditions for access to political power and its respective exercise are equally
established by Law.

The exercise of political power is not based on the use of force. The authority of
governors in concrete must be an authority constituted by a set of
fundamental legal norms and these norms form the Constitution.

The law creates rights and obligations in the relationships between individuals and between them and the

community. The right to command that assists the rulers and the green obedience that
The bonds of citizens are established by legal norms.

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 The law binds not only individuals but also the State and its
institutions, whose activities must be carried out in accordance with principles and
legal rules.

Thus, the law provides security to the relationships between citizens and between them and the

political power.

All regimes and political systems, at any time and place, have been or are
defined and legitimized by legal values and principles.

The subjection of the State to the Law is the basis of Public Law which includes Law
constitutional.

Public Law - a set of legal norms aimed at protecting the

general interest (interest criteria).

Public Law - Law of the State and other public legal entities
(criterion of the position of the subjects).

Private Law - a set of rules intended to protect interests

particulars (criteria of interests).

Private Law - Law of individuals (criterion of the position of the subjects).

3. Constitutional Law

Constitutional Law is the part of the legal order that regulates the State
State-Community and State Power.

Constitutional Law - a set of fundamental norms that defines:

The structure, the ends, the organs, the functions, and the acts of the State;

The position of individuals and groups in relation to one another;

The position of individuals and groups before the State-Power.

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 4. Constitutional Law or Political Law

Political law - rules that directly and immediately regulate the State,
thereby constituting its legal status or the legal status of the
politician.

Constitutional Law – norms that cover the form of the Constitution.

The designation 'Political Law' reduces the scope of this branch of Law to:

organization and limitation of political power;

discipline of State-Power, moving everything to other areas of Law

as far as the State-Community is concerned.

But this understanding is not peaceful, because it cannot exist:

statute of political power without the statute of the political community with which
this power is related;

limitation of the authority of rulers without regard for freedom

two governed.

The Constitution is, at the same time, a political Constitution and a social Constitution.

Therefore, in this course, the designation of Constitutional Law is preferred.

Political Law.

5. Constitutional Law and the legal order of the State

The political fact relates to the political society as a whole and, in this
meaning, encompasses, coordinates and synthesizes the plurality of groups, interests and situations.

Therefore, Constitutional Law, as the regulator of the political, is considered

trunk of the legal order of the State, the trunk from which the branches of the great
tree that corresponds to this legal order.

The Constitution establishes the prerequisites for creation, validity, and execution of

norms of the rest of the legal system, broadly determining the content of the
norms of the remaining legal system.

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 The Constitution is the element of unity of the legal order of the State and,
in this compliance, it prevents:

the isolation of Constitutional Law;

the isolated existence of other branches of law in relation to

others.

In addition to regulating the organs of power, the Constitution contains general principles of

various branches of Law, namely, Criminal Law, Criminal Procedure Law,

Family Law, Labor Law, Tax Law, Financial Law, Law
Economic, Administrative Law.

Through the principles, the Constitution reflects in the entire legal system
state legal.

Notwithstanding, each branch of Law develops a set of precepts

the proper principles, taking into account the particular situations of social life that
aims to discipline.

But the precepts and principles of each branch of law should never
to go against the Constitution.

In Constitutional Law, only that which relates to the

structuring of the community and political power that has political significance
immediate.

Thus, everything that pertains to ...

individuals, to groups, and to non-political social powers

6. The major chapters of Constitutional Law

Parliamentary Law - a set of rules concerning the organization and the

functioning of parliament

Electoral Law - set of rules that regulate elections

policies (the active and passive electoral capacity, the registration, the

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 suffrage, the counting of electoral results and the litigation
electoral)

Constitutional Law of the Economy or Economic Constitution –

set of rules that define the organization and functioning of the
economy as one of the dimensions of the political community.

Financial constitution - set of norms that regulate the activity

State finance.

Social Constitution - a set of norms that establish rights

social rights of citizens.

Constitutional procedural law - related to judicial oversight or

jurisdictionalized of the constitutionality of laws through an organ of
concentrated competence (Constitutional Court or 'similar body')
with its own process.

These large chapters of Constitutional Law are filled by

formally constitutional norms and then by norms of other categories that
they complement those.

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 Theme II

The Constitution as a legal phenomenon

1- Constitution: definition and classifications

1.1. Concept of Constitution

1.1.1. Constitution - system of fundamental legal norms regulating the

social coexistence in a community established in the form of a State.

1.1.2. Material perspective - Constitution defined taking into account the object, the content
or the function of the norms that integrate it.

1.1.2.1. Constitution in a material sense - consists of the legal statute of the State,
or in the legal status of the politician. With the Constitution, the State is structured and the

State Law
1.1.2.2. Material constituent power - the power of the State to establish its own statute

own legal; power of self-organization and self-regulation of the State according to

an idea of Law. It is an original power that expresses the sovereignty of the State
in the internal order.

1.1.2.3. Materially constitutional norms

Rules on the organization of the State, mainly the provisions that

they specify which are the supreme organs of the State, how they are established,

what are your regulatory tasks and competencies, how do you proceed and
they collaborate;
fundamental norms about the position of citizens in the State, with
special relevance of those that refer to their rights and freedoms
fundamental.

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 fundamental legal-political principles and determinations of the ends of
State in which these organizational provisions and guarantees are rooted
legal.

1.1.3. Formal perspective - Constitution defined taking into account the position of its
rules in relation to the other legal norms and how they articulate and intersect with each other

systematic plan of the legal system.

1.1.3.1. Constitution in a formal sense - complex of norms formally
qualified as constitutional, situated at the top of the hierarchy of the legal system
state legal and endowed with superior legal force against any other norms
existing in the legal system.

1.1.3.2. Formal constituent power – the state's ability to assign form

constitutional and superior legal force to certain norms of the legal system.

1.1.3.3. The formal concept of Constitution:

It presupposes a specification of certain norms in the context of order
legal;
It means that the Constitution should be understood as a system
regulatory deserving of relative autonomy;
It entails a hierarchical or structured consideration of order.
legal.
1.1.3.4. Supremacy of the formal Constitution
Formal - the Constitution binds political power regarding
procedures and ways of acting.
Material - The Constitution binds political power regarding
intrinsic content of the acts he/she performs.

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1.1.3.5. Primary formal constitution - norms that are primary, direct and
immediate work of the formal constituent power.
1.1.3.6. Complementary formal constitution - earlier or later norms
belonging to the same legal system or arising from another legal system that
they receive from the primary formal Constitution the strength of constitutional norms.

1.1.4. Constitution in instrumental sense - the written document where they are inserted
the constitutional norms
In a broad sense – any and all constitutional text, whether it is defined
material or formally, whether unique or plural.
In a strict sense - the text referred to as the Constitution or drafted as
The Constitution is loaded with specific legal force of formal Constitution.

1.2 - Material Classifications of Constitutions

1.2.1. Normative, nominal, and semantic constitutions (KARL LOEWENSTEIN)

a) Normative constitutions
Their rules dominate the political process;
The exercise of power adapts to constitutional norms and
they submit themselves;

They effectively limit political power.

b) Nominal constitutions

They cannot adapt their standards to the dynamics of the process.

political and, consequently, lack existential reality;
They aim to limit political power, yet they fail to do so.
achieve such purpose.

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c) Semantic constitutions

They formalize the situation of the existing political power for their benefit.

exclusive to those who actually hold this power;

They serve to stabilize and eternalize the intervention of the rulers of
fact in the community.

1.2.2. Statutory or organic constitutions

a) Statutory or organic constitutions and programmatic constitutions,

directives or doctrinal
They mainly deal with the statute of power, its bodies and the
political participation of citizens;
They focus on the form and the system of government;
They do not care about the economic and social system.

b) Programmatic, directive or doctrinal constitutions

In addition to the political organization, they establish programs, guidelines and

goals for the state's activity in the economic, social, and

cultural.

1.2.3. Simple, complex, or compromissory constitutions.

Classification criterion: unit or plurality of principles
fundamental enforcers of the material Constitution.
a) Simple constitution - characterized by the intrinsic unity and harmony of
fundamental principles.

b) Complex or compromise constitutions - characterized by containing two

or more fundamentally original principles that were not harmonizable, but are subject to
they will be harmonized in practice, upon their application, through interpretation.

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The simple or compromising character of a Constitution depends on:
Of the circumstantial aspects of its formation, its application and its
vicissitudes.
From the absence or presence of a conflict of foundations of legitimacy or of
collective organization projects that constitutional norms must
to surpass through a platform of understanding.
As it is viewed, the political integration.

2. Material constitution and plurality (simultaneous or successive) of

Material constitutions
The content of the Constitution is relativized to structure any political regime,
understood this as each dominant basic conception in each State about the
community and power, the ends pursued by this power and the means by which it
serve.
Thus, each political regime corresponds to a specific idea of Constitution in
material sense. The Constitution of any State is distinguished from the Constitution of another
State according to the political regime it adopts. For this reason, the change of regime
The politician determines the change of the Constitution in a substantive sense.

The plurality of material Constitutions also depends on the following factors:

Form of State - the way the State wields political power in relation to others
powers of the same nature (coordination or subordination) and regarding the people and the

territory.
Form of government - the way the political community organizes its power and
establish the differentiation between rulers and rulers, based on the response
to the problems of legitimacy, freedom, participation, or unity or
division of powers.
Government system - system of bodies of political function and status of
rulers.

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 Institutional form – institutional or symbolic expression of representation or
head of state (monarchy or republic).
The essential content of the Constitution in each State and at each time translates into
specific legal principles, explicitly or implicitly, and these principles encompass
also the form of the State, the form of government, the system of government, and the form

institutional. The set of these principles embodies the material Constitution.

Thus, material constitution is:

Set of fundamental structuring and characterizing principles of each
Constitution in a positive material sense.
Direct and immediate manifestation of a legal idea that imposes itself in a given
collectivity, either by consent or by passive adherence.
Primary result of the exercise of substantive constituent power.
Maximum expression of the freely formed popular will in democracy.
That which remains while the precepts and rules change through the
successive revisions or through other forms of vicissitudes.

3. Characteristics of the Constitution in a formal sense

3.1.Intentionality in training: it means that the formally established rules

constitutional
They are decreed by a power that is defined with a view to that end;
At its origin, they are norms of legal source and not customary or
jurisprudential
They are regulations that require a specific training process, although not
they necessarily require a special modification process;
Enjoy the status or a regime imposed by such characteristics and by the function
genetic or conforming material that serves.
Systematic consideration if
Legal authority of its own

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 GENERAL CONCEPTIONS ABOUT THE CONSTITUTION

1. The great doctrinal currents

a) Natural law conceptions

Constitution as expression and recognition in each system
juridical principles and rules of natural law, especially those that require the
respect for the fundamental rights of individuals.
Constitution as a means of subordinating the State to a Law
superior and, in such a way that, legally, political power exists only
by virtue of the Constitution.
b) Positivist conceptions
Constitution as law, defined by form, regardless of
any axiological content and, having between the constitutional law and the law
ordinary a logical relationship of superordination.
Constitution as a set of rules enacted by the power of
State and defining aspects of its Statute.
c) Historicist conceptions
Constitution as an expression of the historical structure of each people and
reference of the legitimacy of your political organization.
Constitution as a law that should govern each people, taking into account the

its qualities and traditions, its religion, its geography, its relations
political and economic.
d) Sociological conceptions
Constitution as a set or consequence of the mutable
two social factors that condition the exercise of power.
Constitution as the law that effectively governs power
politician in a certain country, due to the political and social conditions therein
dominant.

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 Marxist conceptions
Constitution as the legal superstructure of the organization
economy that prevails in any country.
Constitution as one of the instruments of the ideology of
dominant class.
Socialist constitution as a balance-sheet constitution and
Programmatic constitution.
f) Institutionalist conceptions
Constitution as an expression of social organization, whether
as an expression of enduring ideas in the political community, whether as
ordering resulting from the institutions, the forces, and the political ends.
g) Decisionist conceptions
Constitution as a fundamental political decision, valid only
by the force of the act of the constituent power, and being the legal order

essentially a system of perceptive acts of will, a system of

decisions.

h) Conceptions of the philosophy of values

Constitution as an expression of the order of values that it is
previous, not created by her and that directly binds all the powers of
State.

i) Structuralist conceptions
Constitution as an expression of social structures
historically situated.
Constitution as a global structure of balance of
political relations and their transformation.

2. SOME THEORIES OF THE CONSTITUTION

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 2.1. Theory of FERDINAND LASSALLE

LASSALE starts from the need to distinguish between Real Constitutions and
Written Constitutions to conclude that:
The true constitution of a country always resides solely in the
real and effective factors of power that dominate in this society.
The written Constitution, when it does not correspond to such factors, is by these
away.
Under these conditions, it is either reformed to be brought into harmony with the factors.

materials of power of the organized society, or this society rises up

using your inorganic power, to demonstrate that you are stronger, displacing
the pillars on which the Constitution rests.
Constitutional problems are not primarily a legal issue but
of power.

2.2. Theory of HANS KELSEN

For Kelsen:

Law is a normative order, whose unity is based on a norm.

fundamental, and this is because the basis of validity of a norm only
it may be the validity of another superior norm.
There is a hierarchical structure of different levels in the creation process of
Law that culminates in a fundamental norm which is the Constitution, which
it must be understood in two senses:
Positive Law
. The Constitution represents the highest level of positive law.
elevated and it is the norm or set of legal norms through
the ones that regulate the production of general legal norms.

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 . The production of general legal norms regulated by
The Constitution has, within the state legal order, the character
of legislation.

Logical-legal - the Constitution consists of the fundamental norm

hypothetical, for, as the highest norm, it must be assumed,
cannot be put by an authority whose competence it would have
still based on an even higher standard.

2.3. Theory of MAURICE HAURIOU

According to Hauriou:

The constitutional regime, which is the essential order of the state society in its
free development is determined by the action of four factors: power, the
order, the State and freedom.
. Power is, simultaneously, the founder and organizer of
order.
. The State is the perfected form of order.
. Liberty is both the cause and the end of these actions and of
creation of these forms.
A social organization becomes lasting when it is established, that is:
. On one hand, when the power of government can be subordinated to
the guiding idea that has existed in this social organization since the

moment of its foundation, through the balance of organs and

powers.
. On the other hand, when this system of ideas and balance
powers was consecrated, in its form, by the consent of the
members of the institution and the social environment.

The legal forms used in the organization of the State in view of

liberty is, in historical order:
. The customary institutions.

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 . The kingdom of law with constitutional value.
. The national constitutions that appear at the end of the century
XVIII to the principle of national sovereignty.
A national Constitution is the Statute of the State (considered as
corporation or association) and its members, statutes that are established in
name of the sovereign nation by a constitutional power through an operation

legislative foundation according to a special process.

The Constitution comprises:
. Political constitution - which deals with the general form of the State and
about public powers.
. Social constitution - which primarily concerns rights
individuals that also count as legal entities
objectives.

2.4. Theory of CARL SCHMITT

SCHMITT distinguishes four basic concepts of Constitution:

Absolute concept - Constitution as a whole unit.

Relative concept - Constitution as a plurality of laws
particulars.
Positive concept - Constitution as a collective decision on the way
and the form of the political unit.
Ideal concept - Constitution so called in a distinctive sense and by
due to certain content.
A Constitution is valid because it results from a constituent power and establishes itself.
by the will of this constituent power (meaning will as a dimension of Being as
origin of Duty to Be)
The Constitution (in a positive sense) arises through an act of power
constituent.

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 The act of the constituent power does not contain any norms in itself, but rather, the

totality of the political unit considered in its particular form of existence, for being,
precisely, the only moment of decision.

The act of the constituent power establishes the form and manner of political unity, whose
existence is prior.
The Constitution is a conscious decision that the political unit makes through power.
constituent, adopts for itself and for itself.
The essence of the Constitution does not reside in a law or a norm; it resides, indeed, in the

political decision of the holder of the constituent power (the people in democracy and the monarch in

monarchy)

2.5. Theory of HERMANN HELLER

Heller's theory consists specifically:

First, in defining the Constitution as a whole, based on a

dialectical relationship between normality and normativity.
Secondly, in the search for the connection between the Constitution as a being and the

Constitution as a normative legal Constitution.

The Constitution of the State is not a process but a product of a process; it is not

activity, but a form of activity; it is an open form, through which it passes

life in form and form born of life.

The Constitution endures through the change of time and people, thanks to
probability of repeating in the future the behavior associated with it
agreement.

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Theme III - Formation of the Constitution and the Constituent Power

1. Material constituent power and formal constituent power

The formation of the Constitution does not happen instantly; it implies a

process in which it is possible to highlight several different moments.
In this process, it is necessary to differentiate: (i) the determining factor for the opening of each

constitutional era (i) the entity that determines the fundamental content of each
Constitution and (ii) the body that drafts and decrees the formal Constitution.

a) The determining factor for the opening of each constitutional era

This factor consists of a break with the current situation or political regime.
in a country, through a revolution or by other means.
For example, Mozambique was subjected to about five centuries of
sovereignty of the Portuguese State, in a situation of colonial domination. The rupture that occurs

check regarding this situation - which reaches its peak with the signing of the Agreements
Lusaka between the Front for the Liberation of Mozambique and the Portuguese State, on the 7th of

September 1974 – can be considered the factor that determined the opening of the era
constitutional that culminated with the approval of the Constitution of the Republic of

Mozambique, at Tofo Beach, on June 20, 1975.

b) The determining entity of the fundamental content of a Constitution
It is the entity - political or social force, military or popular movement,
monarch or another body or group - that makes the decision to end the order
previous constitution, assuming the historical responsibility arising therefrom.
This is the case, for example, of the Mozambique Liberation Front which, in 1962
made the historic decision to fight, in an organized and consequential manner, against the domination

Portugal's colonial rule over Mozambique, having triggered armed struggle for this purpose.
of national liberation, on September 25, 1964.

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 The determining entity of the fundamental content of the Constitution can adopt
two possible attitudes: (i) to draft and enact the formal Constitution herself, or (ii)
summon or establish a assembly or another body in order to elaborate and decree the
Constitution.
The example of the first case occurred in Mozambique, where the Front of
Liberation of Mozambique was responsible for drafting and enacting the Constitution of
People's Republic of Mozambique, through its Central Committee. It no longer
happened, for example, in Portugal, where the Armed Forces Movement that
provoked the collapse of the fascist regime, through the coup d'état of April 25
1974, entrusted the responsibility of drafting and enacting the new Constitution to a
Constituent National Assembly.1
In this last case, the body that drafts and enacts the formal Constitution must be faithful.
to the idea of Law or to the fundamental values that correspond to the rupture, cannot
act against this idea of right, under the risk of causing a new rupture and of
to transform into an entity originating from a different material Constitution.
When the idea of Law is democratic and the Constitution is approved by the people
(directly or through a representative assembly), the body that drafts and decrees the
Formal constitution has a legitimacy that derives, solely by itself, from the material constitution.
or that is confused with this one. In the remaining cases, there is a necessary mediation between

the formal constitution and the legitimacy of the constitutional body, or, in other words
between the legitimacy of the material constituent power and the legitimacy of the constituent power
formal.
Even in cases where the idea of Law is of pluralistic democracy, the body
the person responsible for making the formal Constitution does not enjoy total freedom, since,

although this body is not strictly linked to a specific and unique system of
fundamental rights, economic organization, political organization, or guarantee
of constitutionality is subject to a limit that translates into the need for coherence

1
Jorge Miranda, Manual of Constitutional Law, Volume I, 7th Edition, Coimbra Publisher, 2003, Page 332:
The proclamations (...) of the Armed Forces Movement Program soon included the public announcement.
of the calling (...) of a National Constituent Assembly, elected by universal, direct, and
secret, second electoral law to be drawn up by the future Provisional Government.

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with the democratic principle and its preservation. It cannot, consequently, approve
a Constitution that deviates from the democratic principle.
The necessary binding of the organ of the formal constituent power to the power
material constituents do not dispense with the elaboration of the formal Constitution nor reduce its

importance, for the following reasons:

a) In the era of written law civilization and constitutionalism, one cannot
to consider that collective life is legally regulated by the fact that it exists only
an idea of Law or a set of principles, because the legal status of the State
always requires a formal Constitution.
b) The idea of Law, whether defined more or less clearly, is in need of
always to be interpreted, materialized and converted into rules of behavior and
relationship between the State and the citizens and between future organs of political power, and these

rules make up the formal Constitution.

c) Until the decree of the formal Constitution, the power bodies are provisional or
transitory and the validity or effectiveness of the political decision-making acts carried out by them

The bodies are subject to future confirmation or validation.

d) The ordinary law created between the moment of the rupture of the previous order and that of

entry into force of the new formal Constitution - because it is or is assumed to be

according to the new idea of Law - it cannot be subjected to the same treatment as that of
Law created under the previous regime, although only the new Constitution is what
represents the new foundation of the legal order.
e) The constituent power or the sovereignty of the State is not manifested only in
initial moment or in the first act of the constituent process, nor only final moment
of the decree of the formal Constitution. This power is manifested in the connection of all the
constitutive acts and in the set of all the bodies that intervene in them.
It follows that the material constituent power - the power of self-organization
and the self-regulation of the State according to a certain idea of Law - and the constituent power
formal – power to enact rules with the form and legal force characteristic of regulations
constitutional - represent two sides of the same reality, or two moments that
they succeed each other and complement.

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 It is, therefore, a single constituent power that, at the first moment, is
only material and that, in the second moment, is, at the same time, material and formal.

Thus, the relationship between material constituent power and formal constituent power
can be defined as follows:
a) The material constitutive power precedes the formal constitutive power from the point of
logical and chronological or historical view.
It logically precedes it, because the idea of Law precedes the rule of
Law, legitimacy precedes legality.
It precedes chronologically, because the constituent process unfolds
always in two tempos. The first in which the triumph of a certain
the idea of Law or the birth of a certain political regime and according to in
that formalizes this idea of Law or this political regime.
b) The material constitutive power involves the formal constitutive power, because:
Just as the formal Constitution contains a reference
In the matter, the formal constituent power creates a materially content.
valuable.
The formal constituent power complements and specifies the idea of
Law, and through it declares and establishes the legitimacy by which it
it is based on the new constitutional order.

c) The formal Constituent Power grants stability and guarantees permanence and
from hierarchical or systematic supremacy to the normative principle inherent to the Constitution
material.
It confers stability, because the certainty of Law requires the statute of
rule.
It confirms the guarantee, because only the formal Constitution protects power.
material constituent – or the result of its action – against the
vicissitudes of ordinary legislation and the daily practice of the State and
of the political forces.

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 2. The original material constituent power
The material constituent power (in its initial and highest expression of power to
auto-ordering) is characterized by being a rare exercise, however it remains latent in
the entire existence of the State is predisposed to emerge and update itself at any moment.
Indeed, a political community only adopts a new Constitution when
moments of historical turning points in which it is possible or necessary to choose a new direction.

Such special moments cannot be predicted or cataloged beforehand, being

it is only possible to point out your typical results:

a) Formation of a new State as a result of:

Transition to a pre-existing collective state.
Vicissitudes of the State in which a pre-existing community is
integrated (dismemberment, secession or aggregation with others
States.
Restoration of the existence of the State (under conditions similar to those of its

previous existence) or restoration of the effectiveness of sovereignty (following an occupation

of the territory).
c) Transformation of the State in confrontation with other States due to:
Modification of sovereignty (subjection to the protectorate regime, or to
its cessation, incorporation or disincorporation from the confederation.

Loss or acquisition of international sovereignty (integration into the State

federal or real union or secession.
Significant expansion or reduction of the community or of
territory.
The formation of a new state, whatever its cause, is never a fact.
natural or extrajudicial. The formation of the State is in itself a legal act, because:
a) Always appeals to a legal principle that justifies it (for example the
principle of self-determination of peoples.
b) It always implies a dominant conception of Law (for example the
conception of natural law), or an innovative will of law.

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 The formation or birth of a State coincides with its first
Constitution, because it is where the particular representations will be expressed
concept of State.
The most original constitution of the State is that of its birth, because it is the one that
specifically configures the people, the territory, and the political power of the State and calls for
if the idea of law dominates in the social environment.

However, the previous statement is no longer valid when it comes to transformation.

of sovereignty or of territory, insofar as, in this case, there always prevails the
principle of the continuity of the State. Nevertheless, the new historical phase of the State

that arises from the transformation of its elements must be based on an idea or a
project that qualifies the change that occurred.
In the formation, restoration, or transformation of the State, the content of the new
the idea of Law is inseparable from political power itself, but in the change of
the regime replaces the idea of Law. Therefore, the change of regime is associated with
but to the phenomenon of succession of political regimes rather than to the vicissitudes of the State.

Given its depth, the regime change may be equivalent

to destruction or to suppression:
Destruction when the change of regime implies the disappearance of both
Constitution as the Constituent power on which it was based.
Suppression when changing regime only implies disappearance
from the Constitution, but the constituent power remains.
The change of political regime has often taken on the following
modalities of revolution or constitutional transition:
a) Revolution - was considered, until the 12th and 13th centuries, mainly in
optic of the right to collective resistance or rebellion; as an extreme form of
resistance against the rulers.
From that time, and especially because of the French Revolution of 1789, the
the revolution came to be seen not as a mere replacement of one government by
but mainly as the creation of a new order and this fact is related to the
prevalence of modern forms of legal rational legitimacy over the forms
previous traditional delegitimacy.

24
 Later, the Science of Law came to recognize the revolution as a phenomenon.
constituent (generator of Constitution) or a normative act studied
professor.
In fact, the revolution is not the triumph of violence, but rather the triumph of a
Different law or of a diverse foundation of validity of the positive legal system
of the State. The revolution is not anti-legal, it is merely anti-constitutional in opposition to

previous Constitution and not in light of the Constitution that will arise with it.
The rupture with the legal order in force is only possible through the presence of
new values, principles, and criteria that, affecting the previous ones, legitimize the act
revolutionary and trigger multiple and extensive normative effects and susceptible to
acquire a dynamic of its own.
The revolution can take one of two forms:
Coup d'état when its author is a sitting ruler (a
holder of the constituted power that usurps the constituent power.
Insurrection or revolution in the strict sense when its author is a
group or movement coming from outside the constituted powers.
In any case and regardless of their respective objectives
political or political and social, the revolution breaks the constitutional order to remake it
immediately, founding the state legal system again.
b) Constitutional transition (passage without rupture, change in continuity or
policy reform (strict sense) is distinguished from revolution by the following:
In the revolution, a necessary succession of Constitutions is observed.
it is formal - for the break with the previous regime determines the birth
of a new material Constitution, followed, in the medium or long term, by
a formal Constitution.
In the constitutional transition, there is always a dualism, as far as,
while the new Constitution is being prepared, the previous one remains in effect until it is terminated.

resolutive.
In constitutional transition, it may happen that even the same body functions.
simultaneously as an organ of the constituted power in light of the Constitution

25
 current and as an organ of constituent power for the constitution that will
replace the previous one.
The constitutional transition can occur through the process of constitutional revision and

In it, the competencies and the established ways of acting are observed.

4. Constitution and sovereignty of the State

When a State emerges anew, it is restored, or undergoes a transformation.

radical of its structure, appears endowed with a Constitution. This can be a
Material constitution that is followed by a formal constitution or a constitution
material already accompanied by formal Constitution.
The referred material Constitution expresses, directly and immediately, the sovereignty.
that the State assumes or re-assumes at this moment. However, in the case where the

Material Constitution and formal Constitution emerge at the same time, the Constitution
formal may correspond to one of three hypotheses:
a) Constitution enacted by the new state bodies that can be provisional or
definitive.
Constitution coinciding essentially with the Constitution of the political community
pre-existing (autonomous colony, territory under mandate or guardianship).
c) Constitution derived from an external entity (another State or Organization
International) and meant to take effect with access to sovereignty (or independence) of
new State – heteroconstitution. Examples include some Constitutions or the first ones.
Constitutions of Commonwealth countries approved by law of the British Parliament,
namely Canada, New Zealand, Australia, Jamaica, and Mauritius.
A heteroconstitution has legitimate title from the moment of
acquisition of sovereignty, not the authority that prepared it but rather the sovereignty of the new

State. Until independence, the basis of validity of the Constitution was in order.
legal where it originated, but with independence this foundation transfers to the
local legal order that becomes invested with constituent power.

26
 5. From material constituent power to formal constituent power
Situations in which the material and formal Constitutions are not usually frequent.
formal arise simultaneously. The most frequent situations are those in which, thereafter
the exercise of the material constituent power opens a complex and lengthy process
tending to the preparation and drafting of the formal Constitution text.
This process does not occur arbitrarily; it needs to be regulated.
In the case of the revolution and due to the rupture that takes place, such a process implies

still a provisional organization of the State until the functioning of the bodies begins
will be established by the future formal Constitution.
To the set of norms that has the dual purpose of defining the regime of
drafting and approving the Constitution to restructure political power in
constitutional interregnum is called pre-Constitution or provisional Constitution or
still revolutionary Constitution.
The norms of the provisional Constitution, due to their function, acquire value.
reinforced in confrontation with other norms, cannot be altered or derogated
by subsequent regulations that do not have identical value.
The provisional constitution opposes the definitive or permanent constitution.
indefinite for the future, as it aims to be the Constitution that is the final product of
constituent process.
The provisional Constitution must also be distinguished from the phenomenon of
provisional entry into force of certain constitutional principles or norms
formed during the constituent process must also be distinguished from subsistence
provisional regulation of constitutional norms that are not contrary to the new principles
constitutional.
A recent example of pre-Constitution is the provisional Constitution of South Africa.
approved at the World Trade Center, in 1993, at the culmination of negotiations that involved

all South African political parties since 1991. The definitive Constitution of Africa
from the South was approved in 1996 and had to be confronted with the Constitution
provisional by the Constitutional Court.

27
 6. The types of constitutive acts

Determinants of the variation of the Constituent process:

a) Form of State (unitary or federal).
b) Type of legitimacy that can be:
Democratic legitimacy
. Pluralist
. Totalitarian.
. Representative (only)
. Representative with semidirect variable.
Monarchic legitimacy

The various types of constitutive acts

Considering the aforementioned factors, the acts of the constituent process may
cover the following types:
a) Unilateral singular constitutive acts when they result from a single
organ or subject.
b) Constitutive unilateral acts when they consist of the sum or
result from partial acts coming from two or more bodies of
same entity holding the constituent power.
c) Constituent acts bilateral or plural when they result from an agreement of
wills between two or more subjects or entities.

Singular unilateral constitutive acts

Unilateral constituent acts occur in a unitary state or
in a fictitious federal state (or unitary federal structure) and are now based on the principle of
monarchic legitimacy now in the principle of democratic legitimacy (with or without
pluralism.

28
 Acts of this type may take the following forms:

a) Granting of the Constitution by the monarch (France in 1814 and Portugal in

1826).
b) Decree of the President of the Republic or another body of the executive power
(Brazil in 1937).
c) Act of revolutionary authority or of the constitutive authority of the State
(Mozambique and Angola in 1975).
d) Approval by an ordinary or common legislative assembly endowed with
powers for the purpose (USSR in 1977).
e) Approval by a specifically convened assembly (but not
necessarily only) for this purpose, called assembly
constituent (Portugal in 1976).
f) Approval by a simultaneously elected assembly as an assembly
constituent and as ordinary assembly (Brazil in 1988).

Multiple unilateral constitutive acts

Unilateral plural constitutive acts are also verified in the State
unitary, they all rest on democratic legitimacy (with more or less pluralism),
combining, in a way, representative institutes and direct democracy or
semidirect.
This type of acts can take the following forms:
a) Approval by referendum, prior or simultaneous to the election of the assembly
constitutive, of one or several constitutional principles or options and,
continue the drafting of the Constitution according to the meaning of the vote
(Greece in 1974 when deciding on monarchy or republic).
b) The definition by ordinary representative assembly of the great
principles, the drafting of a constitution project by the Government and the
final approval by referendum (France in 1958).
c) The drafting by a constituent assembly, followed by a referendum (France
in 1946 and Spain in 1978.

29
 d) The drafting by an entity arising from the previous Constitution, with

subsequent popular approval (France in 1799, 1801, and 1804).

e) The drafting by a revolutionary authority or body authorized by
revolution, followed by referendum (Portugal in 1933, Cuba in 1976, Chile
in 1980, Turkey in 1982.

Bilateral or multilateral constitutional acts

Bilateral or multilateral constitutional acts occur in a State.
composed, namely, the federal state and include the following forms:
a) The drafting and approval of the Constitution by a representative assembly,
subject to the sanction of the monarch (Norway in 1814, France in 1830 and
Portugal in 1838.
b) Approval of the Constitution by a representative assembly, followed by
rectification by the component States of the Union (United States of
America in 1787.

The constitutions approved under these conditions are practical, in that

implies, in the first case, a pact between the assembly (or the people) and the King or between the
agency (or federal power) and the member states of the union, in the second case.

7. The material limits of the constituent power

The constituent power is logically prior to and superior to the constituted powers.
legislative, executive, and judicial.
The established powers are framed by the Constitution, both formally and informally.
materially.
Formally frame them as these powers cannot be exercised outside
within the scope of the Constitution.

Materially frame them because the decisions and norms that result from this
exercises cannot contradict the normative sense of the Constitution.

30
 However, the constituent power does not equate to an absolute sovereign power nor
equates to the ability to give the Constitution any and all content, without meeting
any principles, values, and conditions.
The constituent power is subject to material limits that can be:
transcendent, immanent and, in certain cases, heteronomous.
a) Transcendent limits (directed both to the constituent power and to the
formal constituent power) are those that, preceding and imposing themselves on the will

of the State (or of the people in democratic constituent power) and demarcating
your sphere of intervention comes from imperatives of natural law, of
superior ethical values or a collective legal consciousness. Among
the transcendent limits are those related to rights
fundamental immediately connected with the dignity of the human person
(e.g. the right to life and to physical and moral integrity, personal freedom, the
freedom of beliefs, equality before the law.
b) Immanent limits (specific to the formal constituent power) are
linked to the configuration of the State in light of the material constituent power and

understand the limits that pertain to the sovereignty of the State and, for
times, to the form of State, as well as the limits concerning to
political legitimacy in concrete.
c) Heteronomous limits (directed both to the material constituent power as
to the formal constituent power) are those arising from the conjunction with
other legal systems.
Heteronomous limits of international law - refer to
principles, rules or acts of international law, from which result
obligations for all States or for a certain State.
Heteronomous limits of domestic law - refer to rules of
Domestic law, when the state is composite or complex and, by
Consequently, your legal system must be complex.

Source: Jorge Miranda, Manual of Constitutional Law, Volume II, Almedina,

Coimbra Publisher, 2003.

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THEME V - MODIFICATION AND SUBSISTENCE OF THE CONSTITUTION

1. Constitutional amendments in general

1.1. Modifiability and modifications of the Constitution.

Constitutions are usually made with the intention of being definitive,
that is, without a fixed duration. However, any Constitution is subject to modifications
during its validity.
The modifications aim to:
adapt the constitution to the circumstances and the new times
to meet the demand for solutions to problems that may arise even from the
application of the Constitution itself.
They are, among other factors that dictate the modification of the Constitutions:
the tension between the Constitution and constitutional reality
the need for effectiveness.
It is thus agreed that the modification of the Constitutions, even if variable
Regarding the frequency, extent, and the way it occurs, it is an inevitable phenomenon of
legal life.
A greater internal flexibility of the Constitution may be a condition for its greater
durability and subject to less extensive and less serious modifications.
But the decisive factors of durability and the degree of modifications of
Constitution are:
the stability or the dominant political and social instability in the country;
the degree of institutionalization of collective life observed in the country;
the political-constitutional culture;
the capacity for evolution of the political regime.

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 1.2. Amendments to the Constitution and constitutional vicissitudes

1.2.1. Constitutional vicissitudes

Constitutional vicissitudes are understood to be any events or
events that project themselves onto the survival of the Constitution or some of its provisions

of its rules.
Constitutional vicissitudes can be classified according to five
criteria:
a) The manner in which they are produced

Express vicissitudes – the constitutional modification occurs

as a result of an act specifically directed at him. Here it is
the text of the constitutional norm has been altered.

Tacit Vicissitudes - the constitutional amendment is a result

indirectly, a consequence that is drawn later from a fact
historically located normative. Here the text remains,
only modifying the content of the norm.

b) The object, that is, the affected constitutional norms.

Total vicissitudes - affect the Constitution as a whole, impacting
all constitutional norms or fundamental principles of
Constitution.
Partial vicissitudes reach only part of the Constitution and never
the defining principles of the idea of Law that characterize it.

c) Scope, that is, situations of life and the recipients of the norms
constitutional issues raised by the vicissitudes.
General and abstract vicissitudes affect all situations.
of identical or similar configuration and all and any
recipients who are found in them.

33
 Concrete or exceptional vicissitudes affect situations
concrete, verified or to be verified and some of the recipients
possible subjects covered by the regulations.

d) The consequences on the constitutional order

Vicissitudes that do not collide with the integrity of the order
constitutional above all with its continuity and that
correspond to a constitutional evolution.
Vicissitudes that collide with the integrity of order
constitutional ones that correspond to a break of continuity, the
breakup.

e) The duration of the effects

Vicissitudes of temporary effects - suspensions of the Constitution

in the sense of
Vicissitudes of definitive effects - all except for partial suspension
of the Constitution.

1.2.2. The various types of constitutional vicissitudes

a) Constitutional revision (revision in its proper sense) - is the

modification of the Constitution express, partial, of general reach and abstract.
by nature, the one that more immediately translates a principle of continuity
institutional.
The constitutional review aims to:
Self-regeneration and self-preservation, that is, the elimination of
norms of the Constitution that are no longer justified from the point of view

political, social and legal.

Addition of new elements that revitalize the Constitution and,
sometimes, consecration of pre-existing norms by virtue of custom
constitutional or ordinary law.

34
 The constitutional revision is the modification of the Constitution in accordance with

in its own provisions, or, in the absence of express statutory provisions regarding the process, in the

terms arising from the system of constitutional bodies and legal acts.
The constitutional revision can occur both through the insertion of the
direct modification in the constitutional text itself through the
approval, for this purpose, of an independent constitutional law.
The constitutional revision itself is usually a
partial modification. In the cases of so-called total revision, it is about
truly of constitutional transition.
The total revision, as a true and proper constitutional revision, only exists
when one intends to renew a constitutional text entirely without change
of the fundamental principles that shape it.
The total revision can only be of the instrumental Constitution and not of
Material constitution.

b) Derogation of the Constitution (or material break or rupture) - approaches

from constitutional revision and with it can be grouped a concept of revision in the broad sense or

constitutional reform, insofar as it is more often carried out through

a process identical to that of strict sense review.
The result of the derogation diverges from that of the constitutional review because

consists not of the addition of a general and abstract rule but of a general and
concrete and, at times, of an alleged individual standard.
The derogation establishes a temporary, or ostensibly definitive, exception.
in light of the principle or the constitutional rule.
The derogation is the violation, as an exception, of a legal provision.
constitutional for one or several specific cases, when this is allowed by a law
constitutional, or results from a process prescribed for amendments to the Constitution.
It is the modification of the Constitution carried out through a revision process that
exception to a constitutional principle or in the regulation of a case
concrete.

35
 The constitutional norms that derogate constitutional principles can be
created:
By means of review or by means of an analogous act
By the original constituent power (self-constitutional ruptures, according to
certain authors).
However, the legitimacy of the derogatory constitutional norms has been
answered, due to the belief that its uncontrolled admissibility may lead to
constitutional manipulations leading to a conglomerate of ruptures that can be
to translate into another constitution substantially different from the designed constitution
by the constituent power.

Jorge Miranda's position regarding exceptional constitutional norms

is as follows:
The problem of original derogations is related to the problem of norms.
constitutional unconstitutional;
Subsequent derogations of fundamental principles must be regarded
as inadmissible and unconstitutional;
The derogations of rules that are not fundamental principles seem
admissible.

c) The Tacit Modifications of the Constitution

The constitutional custom praeterecontra legem (see subject on the
sources of constitutional norms

The evolutionary interpretation of the Constitution

The interpretation of the Constitution must be evolutionary, considering the need

to adapt the meaning of the interpreted norms to the dynamics of the reality in which they are

they intend to apply.

But the admissibility of the evolutionary interpretation of the Constitution should not

legitimize the elimination of constitutional norms.

36
 The evolutionary interpretation must be carried out in a way that preserves the spirit of
Constitution, if you revitalize its norms.
The elimination of constitutional norms can occur, at the limit, by virtue of
constitutional customary and not by virtue of the activity of the interpreter.

The indirect review

It is a particular form of systematic interpretation and consists of reflection
about a certain norm of the modification operated by direct review.
Indirect review occurs when the meaning of a norm is not subject to review.
constitutional comes to be altered by virtue of its systematic and evolutionary interpretation
in face of the new constitutional norm or the alteration or elimination of the norm
preexisting.

d) Constitutional vicissitudes with rupture in the legal order

They are constitutional amendments in the strict sense and can be total or partial.
Revolution - It is a rupture of the constitutional order

Non-revolutionary rupture (also referred to as partial rupture)

It consists of the amendment of the Constitution without observing the rules.
respective constitutional ones. It is a break in the constitutional order.
The non-revolutionary rupture does not call into question the validity in general of the

Constitution; continues to recognize the principle of legitimacy on which it is based

Constitution; it only introduces a limit to it or applies it again in an original way.

f) The constitutional transition

It is the transition from one material constitution to another with observance of the forms.

constitutional, without rupture.

Here the material Constitution changes but the instrumental Constitution remains, and,
eventually, the formal Constitution.
The constitutional transition can be carried out through:

37
 The review process in this case may consist of constitutional provisions.
expresses. It deals with cases of Constitutions that establish a regime
of reviewing its fundamental principles.
General process of constitutional revision, once certain requirements are verified for the
removal of fundamental principles or for the replacement of political regime.
This is what happens when, through the review process, limits are rounded off.

materials, explicit or implicit, equivalent to such principles.

g) Constitutional development
It occurs through the combination of various vicissitudes such as interpretation
evolution of the Constitution, constitutional revision, and customs according to, and against precedent

legem.
The constitutional development does not allow for the emergence of a
Different constitution, only brings the reorientation of the meaning of the current constitution.
h) Suspension of the Constitution

It is the non-viability for a certain period of some constitutional norms,

decreed due to certain circumstances.
The suspension has great interest in the field of rights, freedoms, and guarantees.
susceptible to being suspended, but never entirely, by declaration of the state of
site, emergency, or other exceptional situations.

2. Constitutional Rigidity and Flexibility

Considering their amendability, Constitutions have been classified into
rigid and flexible.

i) Rigid constitution - its revision requires compliance with a form

particular distinct from the procedure followed for the drafting of ordinary laws.
ii) Flexible constitution - the process of its revision is identical to the process
of the creation of ordinary laws. The law of constitutional revision is approved.
according to a process identical to that of the approval of the ordinary law.

38
 A Constitution whose source is the law can be either rigid or flexible.
A customary constitution is necessarily flexible.

The constitutional rigidity is a corollary of the adoption of a Constitution in the sense

formal, for the legal force of constitutional norms is linked to a special way of
production and the difficulties presented to the approval of a new constitutional norm hinders
that the Constitution can be altered under any circumstances, under the pressure of certain
events or that may be affected by oscillations or invasions of the political situation
But the formal faculty of review is intended to prevent the Constitution from being
flanked outside the rules that prescribe.
Rigidity can never be such that it prevents adaptation to new demands.
political and social.

3. The constitutional review and its process

3.1. Diversity of forms of constitutional review

In general, constitutions regulate their own revision; however, the forms of

revisions are multiple and variable.
The most important classification criteria for forms of review
The following are constitutional:
a) The form of state

Simple states – the constitutional revision depends on only one apparatus

of bodies, because here there is only one device of sovereign bodies.
Composite state - the review implies collaboration between the bodies
own of the Composite State and those of the component States, which
they have the right to ratification or veto regarding the modifications to
introduce into the Constitution.

39
 b) The Expression of Legitimacy - The Constitution must enshrine a form of
review of harmony with the expression of legitimacy which can be,
example, democratic, monarchical, or the combination of both.

c) Identity between the processes of primitive creation and revision of

Constitution - the revision process may or may not be identical to the primitive one

process of creating the Constitution. If it is an ordinary legislative assembly

to deter the review faculty, exercises it, most of the time, with
qualified majority or with other specialties.
It is quite rare to elect an ad hoc assembly for constitutional revision.
d) The political system - The method of revision reproduces the political system, being

different, namely in systems:

Pluralist, with free discussion and guarantee of the opposition's participation and

in a one-party system;
Democratic and in an autocratic system;
Of the separation of powers and in a system of concentration of powers;
Of the predominance of assembly or of the head of state.

The intervention of parliaments, whether to decree the revision or to trigger the

the respective process or to propose to another body is a constant.
The intervention of the head of State is more intense in a monarchy (royal sanction of the law of

revision) of what in republic.

e) Representative democracies – the review is carried out by a representative body,

a representative political assembly that can be an assembly in function to
time for the initiation of the review process or a special assembly.

f) The review time – the review can be done at any time, checked
certain requirements or only at a certain time.

40
 g) Circumstantial limits - impossibility of constitutional revision in
situations of need corresponding or not to the declaration of a state of siege or of
emergency or in other exceptional circumstances.

e) The initiative - normally the initiative lies with the body responsible for
to make the review law or to any of its members.
f) Form - as a general rule, the review is subject to an imperative form.
to frame in a certain fixed procedure. But can the Constitution provide
more than one way due to the initiative or to offer to the competent authority
to trigger the process the choice between more than one process.

Jorge Miranda, Manual of Constitutional Law, Volume II.

41
 ISCTEM
CONSTITUTIONAL LAW I

THEME V - AMENDMENT AND SURVIVAL OF THE CONSTITUTION

(Continuation)

3.2. Main forms of constitutional review within the scope of legitimacy

democratic

In states where democratic legitimacy prevails, the forms of review

constitutional can be summarized as follows:
3.2.1. Review only by representative democracy
a) By ordinary assembly
Second ordinary legislative procedure
Second special legislative process
Renewed for the purpose of review
b) By special assembly
3.2.2. Review of representative democracy processes and democracy
semi-directly, cumulatively.
a) By vote in a representative assembly, with possible referendum.
b) By voting in a representative assembly, followed by a referendum
necessary.

4. Review systems in comparative law

The comparative study of Constitutions (in force and not in force) of several countries
allows to establish eight main constitutional review systems.
4.1. Review by the ordinary assembly, according to the ordinary legislative process.
4.2. Review by the ordinary assembly, with the majority identical to that required for the
approval of ordinary laws, but with a specialty of another order (e.g. time,
review initiative.

42
 4.3. Review by the ordinary assembly with a qualified majority (e.g. two-thirds)
or more than all the deputies).
4.4. Review by the ordinary assembly, renewed after general elections
subsequent to a deliberation or decision to open the review process, and with or
without a qualified majority.

4.5. Review by ad hoc assembly, that is, by an assembly elected specifically and
just for review, which can be called a Convention.
4.6. Review by ordinary assembly (or, eventually, by assembly of
revision) susceptible to referendum.
4.7. Review by referendum on the project prepared by the assembly
ordinary or on the law of revision lacking popular sanction.
4.8. Peculiar review of federal constitutions, in which deliberation is added
through the federal organs of the state, the participation of the federated states, via
representative or of semi-direct democracy, for the purposes of ratification or resolutory veto.

The first system corresponds to flexible Constitutions and the others to

Rigid constitutions.
In principle, each Constitution corresponds to a system of revision, however
it can be verified that the same Constitution enshrines more than one system due to the
object, that is, a less severe form for the review of a certain type of rules and a
more severe form for the review of another type of norms.

5. Qualification requirements for constitutional review

For a specific legal act to be considered as a review
it is essential that it contains the specific elements of the
review, which are explicitly established by the Constitutions.
Referring to our Fundamental Law, we can unveil the following
elements that constitutional revision acts must fulfill:
a) The intention or cause of the revision – for there to be constitutional revision

one must express the intention or purpose of replacing or adding to

formally constitutional norms (art. 296, n.º 1 CRM).

43
 b) Competent authority - exclusively belongs to the Assembly of
The Republic approves laws for constitutional review, being dismissed the
hypothesis of review by Government Decree-Law (art. 179, no. 2, al. a)
CRM.
c) The review period or competence due to time - the Assembly
the Republic can only exercise the power of constitutional revision after
the five-year period from the entry into force of the last amendment law,
except for the assumption of extraordinary revision powers approved by the majority
of three quarters of the deputies in active function (art. 293 CRM).
d) Constitutional normality – the Assembly of the Republic cannot
approve any amendment to the Constitution during the vacancy period
the position of President of the Republic (art. 157, no. 1 CRM), as well as
during the state of siege or emergency (art. 294 CRM).
e) Amendment of revision – the changes to the Constitution must be
approved by a two-thirds majority of the members of the Assembly of
Republic (art. 295, no. 1 CRM).
The elements described above are true qualification requirements of the
constitutional review, consequently, its absence renders the act legally
nonexistent as a revision law.

6. Material limits of Constitutional revision

Some Constitutions, in addition to defining the formalities of constitutional revision,

explicitly provide regarding the content of the review, limiting the freedom of the organs
competent regarding the modification of certain constitutional matters. In this
the material limits of constitutional revision consist of.
The content of these limits varies and is very variable according to the variety of the

Constitutions, which may particularly affect the independence and sovereignty of

State, the unity and integrity of the territory, the form of the State, the form and the system of
government, the principle of the separation of powers, the democratic principle, the principle of

Rule of law, the fundamental rights, freedoms, and guarantees of citizens.

44
 Regardless of its variety, all material boundaries of review
constitutional aims to safeguard certain fundamental principles in the face of power
revision.
The Mozambican constitutions of 1975 and 1990 did not establish
expressly limits the subjects of constitutional review. However, it must be observed
that doctrine and jurisprudence have upheld the existence, in any Constitution,
of implicit material limits arising from constitutional principles, from the system
political and the form of government enshrined in the Constitution.
The Constitution of 2004, unlike the Constitutions that preceded it,
establishes in article 292, no. 1, a long list of matters that must be respected by the
constitutional review power. Note that

45
 TOPIC VI - STRUCTURE OF CONSTITUTIONAL NORMS

1. The principles and their ordering function

In common sense, when one speaks of Law, the idea that immediately comes to mind is related to
the normative diplomas (e.g. the laws, the decrees, the regulations). However, our
experience shows that such regulatory diplomas are constantly approved,
published and revoked by the competent authorities of power and, consequently, not
can, in isolation, justify the permanence, coherence, and consistency of
legal system.

Is there something specific and permanent in the legal system that allows explaining and
found the validity and effectiveness of each and every one of its norms.

The law is not just a mere sum of isolated rules, a product of acts of will or mere
concatenation of verbal formulas articulated with each other.

Law is an order or a significant set and not a conjunction resulting from validity.
simultaneous.

Law implies coherence, consistency, and is projected in a system.

Law is a unity of meaning, it is a value incorporated into a rule.

This ordering, this set, this unity, this value is projected or translated into
principles, logically preceding the precepts.
The principles are an integral part of Law; they are part of the legal order.

46
The principles do not contradict the norms; they contradict the precepts.

The norms are divided into norms - principles and norms - provisions

The ordering function of the principles

The ordering function of the principles is revealed:

i) In revolutionary moments (particularly clear and strong) where the

the change directly and mainly affects the principles in which it is translated
new idea of Law.

ii) In moments of normality, institutional stability

a) Immediate action: while directly applicable or directly

capable of shaping political-constitutional relations.

b) Mediated action (in the interpretative, integrative, and prospective plans)

Interpretation criteria: the interpretation of the precepts

constitutional must necessarily be done in conjunction with
the constitutional principles.
Integration criteria: the integration of the gaps of the Constitution
must be done in a way that makes explicit the rules that the legislator
the constituent did not want or could not express clearly.
Construction and qualification elements: the basic concepts of
the structuring of the constitutional system appears closely

47
 connected with constitutional principles or through the
prescription of principles.
Prospective, dynamic, and transformative function: by its
greater generality or indeterminacy allows for concretizations,
densifications and variable achievements underpinning the interpretation
evolutionary.
prospective

Classification of constitutional principles

According to G. Canotilho

i. Fundamental legal principles:

fundamental principles historically objectivized and progressively
introduced into general legal consciousness and finds acceptance
expressed or implied in the constitutional text.
ii. Constitutionally conforming political principles
Constitutional principles that explicitly outline fundamental political values
of the constituent legislator
iii. Mandatory constitutional principles
Principles that, within the scope of the guiding Constitution, impose on the bodies of

State, mainly legislative, the achievement of goals and the execution of tasks.
iv. Guarantee Principles
Principles that establish direct guarantees for citizens.

According to J. Miranda

i. Substantive constitutional principles (valid in themselves, reflect the

basic values to which the material Constitution adheres

48
 a) Fundamental axiological principles (corresponding to the limits
transcendentals of the constitutive power): prohibition of discrimination,
inviolability of human life, moral and physical integrity of individuals, the
freedom of religion and beliefs, the non-retroactivity of criminal law
incriminating, the social and labor dignity, the right to defense of the
accused.

b) Political-constitutional principles (correspond to the principles

immanents of the constituent power and the specific limitations of review
(constitutional): reflect the major characteristics and defining directions
of each material Constitution in the face of the others (democratic principles;
representative principle; republican principle; principle of
constitutionality; principle of the separation of powers.

ii. Constitutional adjectival or instrumental principles (especially of scope

technical and complementary of the first) - Principle of publicity of the
legal norms; principle of defining the competencies of the bodies
constitutional by the constitutional norm; principle of the typicality of forms
the norms.

The seat of the Principles

The Constitutional Preambles

Classification of constitutional provisions

Classification of legal provisions in general (also applicable to provisions

constitutional

49
As for the object or content

i. Regulatory standards and technical standards

they have a specific sense of regulation

they provide a legal technical framework for regulatory norms (e.g.

the legal definitions and the qualification rules.

ii. autonomous rules

They have a complete meaning and are worth by themselves (contain all the elements of

a legal norm
They do not have a complete meaning, they are only worth when integrated or combined.

with others (they lack foresight and statute).

iii. Prescriptive norms and prohibitive norms (imperative or injunctive) VS

Permissive Norms
Prescriptive - prescribe a certain act or behavior
Prohibitive: They prohibit a certain act or behavior.

iv. Primary rules and secondary or sanctioning rules

Primaries - deal with relationships and situations of life

Primaries - establish guarantees for compliance with primary norms,
namely sanctions.

v. Innovative norms and interpretative norms

Innovative - introduce a modification in the legal order.
Interpretative – define the meaning and scope of other norms.

vi. Direct norms and derived norms

50
 Innovative ones are directly apprehensible in the expressed provisions
They are implicitly found in other norms (Explanatory interpretation).

Provisions of substantive transitional law: temporary rules intended to

establish the corresponding legal regime for the transition from the regime until then

valid for the new regime decreed

As for your relationships

i. General rules and special rules

General - constitute a rule regime or provide for the generality of
cases.
Special: without contradicting the rule regime, they adapt the general norms to

particular circumstances (Civil Law VS Commercial Law).

ii. Common law norms and private law norms

From common law - they correspond to general principles or exceptions to them
principles (the special norms are differentiated developments of a
only principle. Exceptional norms are based on antagonistic principles.
two adopted by the legal system).
iii. Material norms and referential norms - as they embody in themselves a
regulation or they return it to the ongoing regulation of others
standards.
iv. Enforceable norms and execution norms - according to their execution
depends on others or aims to implement pre-existing norms.
v. Main rules and subsidiary rules - they apply by themselves
own or apply only in the absence of norms that specifically
we occupy the relationships or situations.

51
 Specific classification of Constitutional Law

i. Material constitutional norms (broadly speaking, primary norms) -

reflect the core of the Constitution in a material sense, the idea of right
modeler of the regime or the constituent decision (norms of the principles
fundamentals
ii. Constitutional guarantee norms (broadly speaking, secondary norms) –
establish the ways to ensure compliance with the Constitution before the
State (rules on the oversight of constitutionality).
iii. Constitutional norms of a substantive nature - concerning the relations between society and

the status or the status of individuals and groups within the community
politics (rules about fundamental rights)
iv. Organic norms - defining the organs of power, their structure, their
competence, of its reciprocal articulation and the statute of its holders.
v. Procedural or formal rules regarding the acts and activities of power,
in the legal processes of formation and expression - will necessarily
regulatory and functional.
vi. Preceptive constitutional norms – those of unconditional or conditional efficacy
dependent on institutional or de facto conditions.
vii. Programmatic constitutional norms - those directed towards certain ends and to
transformation not only of the legal order but also of social structures and
of the constitutional order, involve the verification by the legislator, in the exercise

of a true discretionary power, the possibility of realizing them.

viii. Self-executing constitutional norms - applicable on their own, without
need for a law to complement them.
nine Non-executable norms by themselves - those that lack legislative norms
that we make the situations of life fully applicable.

52
x. Constitutional norms contain a specific regulation.
constitutional either as a title of material norms or as a title of norms of
warranty.
eleven Constitutional norms about constitutional norms refer to others.
constitutional norms for certain purposes (provisions on revision
constitutional)

53
Prescriptive Norms and Programmatic Norms

The difference between prescriptive norms and programmatic norms does not reside in
legal novel nature

As for nature - both are constitutional legal norms in a material sense

formal atmosphere.

As for value - both possess superior legal force in relation.

to the norms of ordinary law.

The difference lies:

In the structure

In the degree of realization and effectiveness.

Programmatic norms are characterized by:

they will be differentiated application not immediate application or execution

deferred effectiveness;

they will explain commands - values instead of commands - rules;

check flexibility or elasticity to constitutional ordering

(prospective dimension);
to have the primary addressee legislator who must weigh regarding the
to give them full effectiveness using the available means
(discretion of the legislator);
they cannot be invoked by citizens immediately after the entry and
vigor of the Constitution, asking the Courts for its application.

54
 they often appear accompanied by indeterminate concepts or
partially indeterminate (indeterminacy).

Enforceable norms and non-enforceable norms by themselves

(Distinction between prescriptive norms and programmatic norms)

The classifications of constitutional norms that are receptive and programmatic;

executables are not executable by themselves but are distinct, although they overlap

partially.

Interaction of the norms with constitutional reality = basic criterion of distinction

between prescriptive norms and programmatic norms.

Ability to conform or not immediately by their own force reality

constitutional.

Completeness or incompleteness of the norms = basic criterion for distinction between the
enforceable norms and norms that are not enforceable by themselves.

Unfolding in non-executable norms:

A command that substantially fixes a certain objective, assigns a certain right or

foresees a certain body;

A second command, explicit or implicit, that requires the State to carry out
of this objective, the realization of this right or the constitution of this body, through
of norms that establish the mechanisms and appropriate instruments for such
effect.

The non-enforceable norm is identified by the need for complementation by

legislative norms to fulfill its specific purpose.

55
 Partial overlap between classifications "prescriptive norms and norms
"programmatic" and "enforceable and not enforceable by themselves norms."

All norms enforceable by themselves can be considered prescriptive.

(NEPSM = NPTVAS)
But not all prescriptive norms are executable by themselves.
NEPSM)
The programmatic norms are (almost) all norms that cannot be enforced by themselves.
(NPG = NNEPSM)

Comparison between:
Programmatic norms and
Non-executable prescriptive norms by themselves

Common characteristics.

Specific relevance of time;

Self-limitation regarding full effectiveness;

Need for realization and not just legislative regulation.

Distinctive characteristics

The prescriptive norms that cannot be enforced by themselves:

They only require the intervention of the legislator, updating them or making them

as effective.
It depends only on legal factors or political decisions.

56
 The programmatic norms:
They require legislative regulation along with measures.
administrative, as well as material operations.
They still depend, above all, on economic and social factors.

Alternative classification derived from the partial overlap of the classifications

i. Self-executing mandatory norms

ii. Non-executable prescriptive norms by themselves
iii. Programmatic Standards

Legal force of programmatic norms and of non-enforceable prescriptive norms

for themselves

Common aspects

i. Your consideration in interpreting the remaining rules that without them would have
diverse scope;
ii. Your contribution to bridging gaps through analogy;
iii. Even if they have a primary prescriptive content and not
prohibitive, they acquire a double meaning:
a. Prohibitive or negative
prohibiting the issuance of legal norms contrary.
Prohibiting the practice of behaviors that prevent
the production of acts imposed by them.
b. Here material unconstitutionality in case of violation.
iv. They set criteria or directives for the ordinary legislator in the areas regarding
what versam. (o removal of these criteria determine
material unconstitutionality due to abuse of power)

57
 v. The legal norms that embody them cannot simply be
revoked, returning to the previous situation. This would be equivalent to withdrawing

supervening to constitutional norm the acquired exequibility.

Various aspects

Non-executable prescriptive norms by themselves

i. they determine the cessation of validity due to subsequent unconstitutionality,

the previous legal norms that provide otherwise.
ii. They force the legislator to issue the necessary legislative norms aimed at
to check their enforceability within the timeframe they establish (unconstitutionality
by default if this does not occur)

Programmatic norms
i. They determine the supervening unconstitutionality of legal norms
previous discrepancies, but only from the moment it becomes possible
to receive enforceability.
ii. They determine the unconstitutionality by omission only from the moment
in which its enforceability is possible.

Classification of constitutional provisions

Classification of legal provisions in general

(also applicable to constitutional provisions)

As for the object or content

vii. Regulatory standards and technical standards

58
 they have a specific sense of regulation

provide legislative technical framework to the regulatory standards (e.g.

the legal definitions and the qualification rules.

viii.Autonomous norms in non-autonomous norms

They have a complete meaning and are worth it by themselves (contain all the elements of

a legal norm
They do not have a complete meaning; they only have value when integrated or combined.

with others (they lack foresight and statute).

ix. Prescriptive norms and prohibitive norms (imperative or injunctive) VS

Permissive Norms
Prescriptive - prescribe a certain act or behavior
Prohibitive: They prohibit a certain act or behavior.

x. Primary norms and secondary or sanctioning norms

Primaries - deal with relationships and life situations

Primary - establish guarantees for the compliance with primary norms,
namely sanctions.

xi. Innovative norms and interpretative norms

Innovative - introduce a modification in the legal order
Interpretative - defines the meaning and scope of other norms.
xii. Direct norms and derived norms
Innovative solutions are directly apprehensible in the expressed provisions.
They are implicit in other norms (Enunciative interpretation).

59
 Provisions of transitional material law: temporary norms intended to
establish the corresponding legal regime for the transition from the previous regime
in effect for the new regime decreed

Regarding your relationships

vi. General rules and special rules

General rules constitute a rule or provide for the generality of
cases.
Special: without contradicting the rule regime, they adapt the general norms to

particular circumstances (Civil Law VS Commercial Law).

seven. Common law norms and private law norms

Of common law - correspond to general principles or exceptions to those
principles (the special norms are differentiated developments of a
only principle. Exceptional rules are based on opposing principles.
two adopted by the legal system.
viii.Material standards and referential standards - as they contain within themselves

regulation or they return it to the regulation contained in others

standards.
ix. Executable norms and execution norms - according to their execution
depends on others or aims to execute pre-existing norms.
x. Main rules and supplementary rules - they apply by themselves.
own or apply only in the absence of rules that specifically are
we occupy the relationships or situations.

Specific classification of Constitutional Law

60
twelve Material constitutional norms (broadly, primary norms) -
they reflect the core of the Constitution in a material sense, the idea of right
modeler of the regime or the constituent decision (norms of the principles
fundamentals)
xiii. Constitutional guarantee norms (broadly speaking, secondary norms) –
establish the ways to ensure compliance with the Constitution before the
State (rules on the oversight of constitutionality).
xiv. Fundamental constitutional norms - concerning the relationships between society an
the status or the status of people and groups within the community
policy (rules regarding fundamental rights)
fifteen. Organic rules - defining the organs of power, their structure, their
competence, of its reciprocal articulation and of the statute of its holders.
xvi. Procedural or formal rules - related to the acts and activities of pow
in the legal processes of formation and expression - will necessarily
regulatory and functional.
xvii. Prescriptive constitutional norms - those of unconditional or conditional effectiveness

dependent on institutional or de facto conditions.

xviii. Programmatic constitutional norms - those directed towards certain ends and to
transformation not only of the legal order but also of social structures and
of the constitutional order, imply the verification by the legislator, in the exercise
of a true discretionary power, of the possibility of making them concrete.
xix. Constitutional norms enforceable by themselves - applicable only by themselves, without

need for a law that complements them.

xx. Non-self-executing norms - those that require legislative norms
that we make fully applicable the situations of life.
xxi.Constitutional norms contain a specific regulation
constitutional whether as a matter of material norms, or as a matter of norms of
guarantee.
xxii. Constitutional norms about constitutional norms - refer to others
constitutional norms for certain purposes (provisions on review)
constitutional.

61
Prescriptive Norms and Programmatic Norms

The difference between prescriptive norms and programmatic norms does not lie in
legal novation nature.

Regarding nature - they are both legal-constitutional norms in the material sense
formal feeling.

As for the value – both have superior legal force in relation

to the rules of ordinary law.

The difference lies:

In the structure

In the degree of achievement and effectiveness.

Programmatic norms are characterized by:

they will be differentiated application not application or immediate execution

deferred efficacy;
explicit commands - values instead of commands - rules;
to confer flexibility or elasticity to constitutional order
(prospective dimension);
to have the primary addressee legislate who must consider regarding the
the available means to give them full effectiveness
(discretion of the legislator);
cannot be invoked by citizens immediately after the entry and
the vigor of the Constitution, asking the Courts for its application.

62
 often appear accompanied by indeterminate concepts or
partially indeterminate (indetermination).

Executable norms and non-executable norms by themselves

(Distinction between prescriptive norms and programmatic norms)

The classifications of constitutional norms that are preceptive and programmatic;

they are executable not executable by themselves but distinct, although they overlap

partially.

Interaction of norms with constitutional reality = basic criterion of distinction

between prescriptive norms and programmatic norms.

The ability to conform or not immediately by their own force to reality

constitutional.

Completeness or incompleteness of the norms = basic criterion of distinction between the

executable norms and non-executable norms by themselves.

Unfolding in non-enforceable standards:

A command that substantially fixes a certain objective, assigns a certain right or

foresees a certain organ;

A second command, explicit or implicit, that requires the State to carry out
to achieve this objective, the enforcement of this right or the constitution of this body, through

of standards that establish the mechanisms and appropriate instruments for such
effect.

63
The non-self-executable norm is identified by the need for
supplementation by legislative norms so that it achieves its specific purpose.

Partial overlap between classifications 'prescriptive norms and norms'

"programmatic" and "enforceable and non-enforceable norms in themselves."

All norms that can be enforced by themselves can be considered prescriptive.

(NEPSM = NPTVAS)
But not all prescriptive norms are executable in themselves.

The programmatic norms are (almost) all non-enforceable by themselves.

(NPG = NNEPSM)

Comparison between:
Programmatic norms and
Non-enforceable normative precepts by themselves

Common characteristics.

Specific relevance of time;

Self-limitation regarding full effectiveness;

Need for implementation and not just legislative regulation.

Distinctive characteristics

The prescriptive norms that are not enforceable by themselves:

64
 They only require the intervention of the legislator, updating them or making them...

as effective.
It depends only on legal factors and political decisions.

The programmatic norms:

They require legislative regulation along with provisions.
administrative, as well as material operations.
They still depend above all on economic and social factors.

Alternative classification derived from the partial overlap of classifications

iv. Norms that are executable by themselves

v. Non-enforceable prescriptive norms by themselves
vi. Programmatic norms

Legal force of programmatic norms and of non-executable preceptive norms by themselves

same

Common aspects

vi. Your consideration in the interpretation of the remaining norms that without them would have

diverse scope;
vii. Your contribution to bridging gaps through analogy;
viii. Even if they have a primary prescriptive content and not
prohibitive, they acquire a double meaning:
a. Prohibitive or negative
prohibiting the issuance of contradictory legal norms.

65
 Prohibiting the practice of behaviors that prevent
the production of acts imposed by them.
b. From here material unconstitutionality in case of violation.
ix. Set criteria or guidelines for the ordinary legislator in the areas concerning
what versam. (o removal of these criteria determine
material unconstitutionality due to abuse of power.
x. The legal norms that embody them cannot simply be
revoked, returning to the previous situation. This would be equivalent to taking away

supervening to constitutional norm acquired executability.

Non-enforceable prescriptive norms by themselves

iii. They determine the cessation of validity due to subsequent unconstitutionality,

the previous legal norms that provide otherwise.
iv. They compel the legislator to enact the necessary legislative norms aimed at
check their feasibility within the deadline they establish (unconstitutionality
by default if this does not occur

Programmatic norms
iii. They determine the supervening unconstitutionality of legal norms.
previous discrepancies, but only from the moment it becomes possible
to receive enforceability.
iv. They determine the unconstitutionality due to omission only from the moment
in which its enforceability is possible.

Chapter II
Interpretation, Integration and Application

66
Problems of Constitutional Interpretation

Need for constitutional interpretation

Constitutional interpretation serves as the bridge from political reading,

ideological or simply empirical for a legal reading of the constitutional text

Through interpretation, taking into account the letter and the spirit, one discovers the meaning of the

norm

Variation in the relevance of constitutional interpretation

Judicial type arrangements such as the Anglo-Saxon ones

Constitutions with broad and elastic provisions
Regulatory constitutions
Cognitive attitude vs voluntarist attitude towards the Constitution
Judicial oversight of constitutionality
The stances towards the different orientations of jurists and philosophers

Awareness of the specific interest of constitutional interpretation

Appears more clearly:

with the overcoming of the liberal belief in the immediacy of the formal constitution;

when one moves from exegesis and positivism to the effort of construction
dogmatics of constitutional systems
when the advances of legal interpretation theory in general are felt in
field of constitutional interpretation.

67
Difficulties (disturbance factors) in the field of constitutional interpretation

Variety of constitutional norms regarding the object and regarding effectiveness

Indeterminacy or incompleteness of many constitutional norms or their
language
Proximity of political facts (rebellion of political facts against frameworks
purely logical of hermeneutics
Influence of the ideology or pre-understanding of each interpreter
The different criteria by which political bodies move, bodies
administrative bodies and judicial authorities and the possible attitudes of their holders
The compromissory origin of certain constitutions marked by principles
different.

The constitutional interpretation

It has the same nature of interpretation that is carried out in other areas of Law:

It is closely connected with the application of Law;

It is not intended for the abstract enunciation of concepts;

It is intended for the shaping of life by the norm

It involves specialties and not deviations from general parameters.

The constitutional interpretation must:

Take into account the inevitable and irreducible political constraints and ends;
Shows the legal precepts and principles that correspond to them;
Taking into account the constitutional reality, considering it subject to the influence of

norm and not merely a factual reality;

Rationalize without formalizing

68
 Be attentive to the values without dissolving the constitutional law in subjectivism or in
political emotion;
To be made through the norm circulation - constitutional reality - value.

Guidelines for constitutional interpretation

i. Comprehension of the Constitution as a whole, in the pursuit of unity and harmony of meaning

The Principle of interpreting laws in accordance with the Constitution

Meaning: In the case of polysemous or multisignificant norms, it should give-

give preference to the interpretation that provides a meaning consistent with the

Constitution.

Dimensions:
a) Principle of the prevalence of the Constitution – among various possibilities of
interpretation, one should only choose that which is not contrary to the text and to the

spirit of constitutional norms.

b) Principle of the conservation of norms – a norm should not be declared
unconstitutional, when considering the purposes of the norm it can be interpreted
in accordance with the Constitution.

c) Principle of exclusion of interpretation in accordance with the Constitution, but against

law - an applicator of a norm cannot go against the letter and the meaning of it
norm through an interpretation in accordance with the Constitution, even through
from this interpretation, achieve an agreement with the norm
infraconstitutional and constitutional norms.

Authentic interpretation

69
 General sense: interpretation made by the body from which a certain act emanated
normative (e.g.: the meaning of a law is authentically established by another law; a
regulation with ambiguities in meaning is interpreted by another regulation.

Authentic interpretation of the Constitution

When a new law, through the process of constitutional review
established, clarifies the meaning of some precepts contained in
Constitution.
Any authentic interpretation is excluded within the constitutional scope.
made by the ordinary legislator.

Integration of constitutional norms

It occurs when an autonomous constitutional gap is discovered, that is, when

certain situations:

a) that must be considered constitutionally regulated;

b) are not provided for;
c) and cannot be covered by the interpretation, even an extensive one, of precepts
constitutional, considered in its letter and its spirit.

Therefore:
Autonomous constitutional gap (regulatory gap) arises when
notes the absence in the formal Constitution of a legal provision, but which can
to deduce from the regulatory plan of the Constitution and the teleology of
constitutional regulation

Autonomous gaps are distinguished from:

70
 a) heteronomous constitutional gaps - result from non-compliance with
orders to legislate and the constitutional impositions concretely
established in the Constitution.

These gaps are unconstitutional because they represent a violation of impositions.

constitutional provisions of the Constitution.

b) Corrective integrations - based on the idea of the regulation

constitutional being, from a political point of view, incomplete, wrong or lacking
of improvement.

Corrective integrations mean the unconstitutional usurpation of power

constituted by the concretizers of constitutional norms.

Methods of integration of the Constitution

Regulatory gaps can be:

a) Gaps at the level of norms - when a certain provision

the constitution is incomplete, making its supplementation necessary to
end of being able to be applied.

b) Gaps in regulation - when it is not about the incompleteness of the norm

more than a determined regulation together.

The method of integrating regulatory gaps is analogy (legislative or jurisprudential).

71
 APPLICATION OF CONSTITUTIONAL NORMS OVER TIME

Supervenience of Constitutional Norms

Legal phenomena resulting

a) Action of the new Constitution on the previous Constitution

Global revocation or expiration

b) Action of new constitutional norms, arising from modification

constitutional, about the previous constitutional norms
Individualized revocation

c) Action of Constitution new on previous ordinary norms not

dissatisfied with her
Novation

d) Action of new Constitutional norms over previous ordinary norms

dissatisfied
Expiration due to subsequent unconstitutionality

Other legal phenomena arising from the emergence of constitutional norms

a) subsistence of previous constitutional norms

Material reception

b) existence of previous ordinary rules contrary to the new rules

constitutional with the force of constitutional norms.

72
 Constitutionalization and material reception

c) the existence of previous constitutional norms with the force of legal norms
ordinary
Deconstitutionalization

New Constitutional Law and Previous Constitutional Law

1. The global (or systemic) revocation of the previous Constitution

The new Constitution revokes, in its entirety, the previous Constitution, because:
a) in each country and at each moment there can only be one Constitution
material sense and in formal sense; only a certain idea of can prevail
Law.
b) The constituent act has the specific purpose of replacing the order.
constitutional created from a previous constituent act by an order
different constitutional.

2. Partial or individualized revocation

a) occurs in cases of partial modification of the Constitution

b) results, namely, from the constitutional revision, which is a modification
constitutional in the specialty.

3. The material reception

a) consists of the continuation of the validity of previous constitutional norms,

maintaining this quality, but as a secondary title.
b) Thus, alongside the constitutional norms that are a direct expression of the new idea
of Law (core of the formal Constitution), persist by reference to these
other constitutional norms.

73
 4. Expiration (consequential revocation)

It translates into the automatic termination of the validity of the norms that have been subject to

material and/or formal reception by a previous constitution that is revoked by force

the entry into force of a new Constitution

5. Deconstitutionalization

consists of the subsistence of previous constitutional norms, moving from the category of
constitutional norms for the category of ordinary law norms.

74