Parlamento, norma jurídica y jurisdicción constitucional en el pensamiento de Kelsen desde el punto de vista de la neutralidad

Résumé

The general aim of this work is to study Kelsen’s doctrine on parliament, legal norms and constitutional jurisdiction. The analysis of the object of research is made by emphasizing the neutrality in Kelsen, which is usual for a scientific theory of law but not in the field of morality, politics or ethics. I argue that Kelsen assumes the defense of democracy based on the values of freedom and equality but not with the object of establishing a political model or from a defense of a political power. Similarly, Kelsen’s normative theory has been developed from a general perspective. It does not seek to conform to a determinate legal system and neither does it state what law is or what should be the material content of the law. The pure theory does not prescribe but only describes the law. In the same way, the doctrine of the constitutional court as a negative legislator responds to the need to maintain the supremacy of the constitution when it might be affected by the irregular action of the parliament, that is, to verify conformity of the norm with the constitution but not to evaluate the material content of the norm. Before tackling the postulates above mentioned, it was considered advisable to study the value and the neutrality in Kelsen’s doctrine in order to understand to what extent the pure theory of law is neutral, emphasizing the neutral component in the subjects cited above in order to address another major question about the usefulness of a neutral and relativistic theory in a diverse and changing society. Kelsen admits the inevitability of evaluation in law and in politics in contrast to the neutral value developed in pure law theory and in his theory. Certainly, the pure theory of law avoids ideology in general, that is, it does not approve or disapprove its subject matter or evaluating or justifying through the science of law a certain idea of justice, morality, politics, etc. However, I think that his whole doctrine pursues common values such as peace, freedom, equality, justice and collective happiness.