Constitutional Theory: Norms, Material Reality, and Law

The Constitution as a Norm

Karl Loewenstein differentiates between three types of constitutions:

• Normative Constitutions: These function as a true constitutional regime, where the rules are effectively applied.
• Nominal Constitutions: These do not fully apply in practice but serve as educational instruments that may eventually lead to a normative regulation.
• Semantic Constitutions: These act as a disguise for a dominant group to legitimize their rule, often found in dictatorial regimes.

There is a fundamental distinction between the concept of a constitution and the concept of a regime. Historically, dominant groups have adopted constitutional frameworks to create a facade of legitimacy while using the rigidity of the law to perpetuate partisan interests.

The Concept of Material Constitution

The material constitution refers to the political reality. It encompasses the social structure, political forces, and institutions. This concept serves as a critical lens through which to view formal and legal incorporations, prioritizing actual political practice over mere legal text.

Contents of the Constitution

• Dogmatic Part: Recognition of fundamental rights and the mechanisms to guarantee them.
• Organic Part: The structure of state organs and their respective powers, designed to uphold fundamental rights.

The Law: Historical and Current Significance

The law represents any written legal norm linked to the expression of popular will. Its primary features include:

• Superiority: It ranks above all other sources of law, subordinate only to the Constitution.
• Publication: It must be officially published in the state gazette.
• Origin: It emanates from the legislative body.

Classes of Laws

Laws are categorized based on their origin and function:

1. Parliamentary Laws: Enacted by state or autonomous parliaments.
2. Organic and Ordinary Laws: Differentiated by their scope and requirements.
3. International Treaties: Incorporated via specific authorization bills.
4. Legislative Delegation: Includes legislative decrees issued by the government.
5. Budgetary Laws: Specific laws governing state finances.
6. Procedural Variations: Laws passed by full chambers, commissions, or via emergency procedures.