Concepts About The Constitution, Constitution In Ecuador

CONCEPTS ABOUT THE CONSTITUTION, CONSTITUTION IN ECUADOR

Introduction

The present work is oriented to know and determine the concepts of constitution as its background One of the main is the Magna Carta de Juan Sin Tierra in 1215, where some measures limited the power of a king and for the first time the very important constitutional principle grewAt that time, the Constitution or Magna Carta in antiquity was like a means of complaints and these could be heard by others

The great beginnings were from the seventeenth and eighteenth centuries, where the triumph of the ideas of liberal rationalism is produced at this time and with this philosophy an essential change arises with respect to the previous situations, in regard to the limitation of power of power. These limits will no longer be divine or moral as order, but of the person as a conception of power, a consequence of the rational criterion applied to the political organization. It is from the triumph of these rationalist ideas when we can speak with ownersConcept of study.

The concepts of written constitution as mentioned begin in the 18th century, where documents appear to administer the political organization of society. But a reflection on political organization arises and is in classical antiquity, in the Middle Ages and in modernity. The term Constitution has from a political evolution, an ancient constitution, a medieval constitution and a modern constitution. For this reason we must first address historical evolution since the emergence of political ideas, and then specify the concept of constitution that has been developed over time.

Also, the Constitution will be evidenced as a legal norm, and the Constitution as the main material and formal source of the entire legal system, we will make conclusions on the work proposed.

Brief conceptual description

The Constitution as we know is a regulatory framework proposed for the organization of the powers of a State. According to Michelangelo Bovero, in an analogy with medical science, the term refers to the structure of the state political body. As the Constitution is the order that regulates the powers of a State. Applying this definition all states must have a constitution. Any organization that has political power has to have a legal expression structure that is regulated with norms that has to be written and to that constitution. 

Based on this concept, it is proposed that all states must have a written constitution but it is not so, therefore the powers in the same way are not organized. But also the organization of powers can be expressed in multiple ways that do not necessarily have a legislative origin can also have a jurisprudential origin and even come from custom or tradition and that, as a whole, give shape to the constitution of the State. This means that political power can be constituted differently.

Respects of the organization of the powers that starts the Constitution and the latter, then, it is nothing other than the normative expression of said articulation. In fact, in modernity, if we follow the premises of the contractualist theory product of modern iusnaturalist thought, the normative constitution becomes the expression of the political pact in which the State supports its legitimacy. The Pactum Subjectionis devised by Hobbes and that can be preceded by a pactum societatis, as proposed by Locke, or constitute a kind of social contract in favor of the general will, as Rousseau theorized, from the point of view of constitutional theory, acquires expressionin what we call "the constitution of the State". To that extent it is in the Constitution where the founding or founding political agreement that legitimizes the state entity is expressed and resides. In this theoretical model, the State itself is an artificial entity that emerges from a political decision – the contract or social pact – but there are different ways to organize the powers once they have been constituted. For example, we know that Hobbes promoted an absolute state, locke a liberal state and Rousseau a democratic state.

Developing

The Constitution in Greece

Enrique Álvarez Conde: “Normally the first concept of constitution is usually attributed to the Hebrew. This Supreme Standard was identified with the Divine Law, containing a strong ethical or moral burden, whose update was made through the prophets ”. In the Greek era, the idea of a constitution in the material sense predominates. At this time the form of government does not imply a concept of sovereignty or state, but simply, as manifestedto collective actions and to consent, thus, a peaceful recognition of the common political belonging ”.

That the author mentions that the Greek form and especially the Athenian was the democratic form. He quotes Clístenes first, and his constitutional reform of 508-507, and then Pericles, from 460 to 430, and expresses that the democratic form meant absolute primacy of the assembly of all Athenian citizens for the assumption of decisions of collective relevance;Word right granted to every citizen without discrimination, lucky attribution of public positions and magistrates, alternation of the rulers, their obligation to account for accounts (Binomial demokraty-isonomy or democracy-thirty.

Then Plato and Aristotle speak of polytheia, that the modern ones have translated into the sense of constitution. The Constitution of Athens is known a work in which Aristotle analyzes the form and structure of the Government and Administration of Athens where the term Constitution refers to the different forms of government, and analyzes political power. 

The Constitution in Rome

Remedio Sánchez Ferris [Footnoteref: 6] The Roman city has characters very similar to those of the Greek polis (reduced social group, religious unity and citizen participation) that, unlike the Greek, the Roman is aware of the existence of the existence ofA res publices diverse of private interests and projects it on the distinction between a ‘public’ right and a private right ‘right. 

The contribution of the Roman world, through the concept of ‘rem publicam constituere’, does not mean an element of rupture with the Hellenic tradition. Where it states that the State will be understood as something pre -existing to the people and the Constitution as one of the elements of the latter, being considered as the effective instrument to organize the political community. As Polyibio relief, the constitution of a people should be considered as the first cause of the success or failure of any action.

The Constitution in Middle Ages

In the Middle Ages the term Constitution was used to refer to the prince’s legislation. Like Spain, France and England were kingdoms of cities, the term Constitution is used as a legislative instrument through which franchises or privileges were given to individuals from a political community Burgos, Villas or Cities. The constitutions were understood as a pact and by this the legal status of a community, of a territory, of a city is defined. In England, Constitution also refers to franchises and privileges of certain levels such as the Church. Likewise, constitutions are considered as fundamental laws of the kingdom.

The limitation of the King’s powers is present in the Magna Carta of 1215, a contract signed by the king and all the rich, lay and ecclesiastical, which was intended to be the set of rights that by tradition corresponded to the clergy, toThe vassals of the sovereign, all the free men, to the merchants and the community of the city of London. It was about limiting some prerogatives of the king, such as the conditioning of the imposition of taxes, or of loads of different gender, to their approval by the bishops, the counts and the major barons. 

All this began the concept of the fundamental law in the Middle Ages. The content of the fundamental law, which was initially made up of the monarchical rules of succession, by the need to summon the different levels and by the impossibility of disposing of the real heritage, was subsequently identified with the idea of limitation of power,that will crystallize in the theories of the ius resistance. It is the idea of the pact between the REX and the Regnum, which will lead to the so -called Sinalagmatic Constitutionalism (García Pelayo). Under these ideas it should be mentioned the media letters that were concessions by the sovereign to certain levels and corporations. The medieval mixed constitution is aimed at limiting all public authorities

The Constitution of Modern Age

Locke [Footnoteref: 8] and throughout the 18th century, the idea that the Constitution was actually the English Constitution, which had known to balance the powers of Parliament and the monarchy, and guarantee the rights, and guarantee the rights, and guarantee the rights, and guarantee the rights, and guarantee the rights. It was claimed that the English Constitution was able to prevent all absolutization of power and distinguish and counterperse the powers. 

These ideas were defended and disseminated by Montesquieu (1689-1755). Expresses Montesquieu that both the monarchy and democracy can assume a despotic configuration. Therefore, a moderate political regime is that endowed with a constitution capable of maintaining differentiated and in a equilibrium position those same powers. 

This illustrious thinker maintains that "power slows down", meaning that the legislature can and must control the execution of the law, but without enduring the matters that compete the Executive;And this second can oppose his veto to the law, but only in a negative sense, and without configuring the participation of the Executive in the formation of the legislative will. States that the rights of individuals can only exist within a moderate political regime, endowed with a constitution similar to English. In this regard, he said: "Political freedom is found in moderate governments".

Description of the legal-formal concept of constitution

In Europe in Sigo XX, unlike what will happen in the United States of America, the Constitution will not be considered as a legal norm, but will become the expression of good wishes, of a chapter of good intentions, a kind of political program. After the First World War, Europe will collect the idea again, full of practical consequences, that the Constitution is true legal norm and therefore directly applicable by the ordinary courts, an idea that had remained alive in the United States of America.

The legal-formal concept comes from two different notions of constitution that will end up integrating into a single concept:

• The legal concept of constitution exposed by Hans Kelsen: it is constitution of the special norm that regulates the creation of the law within the State. The Constitution would be the norm that determines what the sources of law are, how these sources are articulated in a hierarchical way, what are the organs that create them and what are the appropriate procedures for a certain product to understand legal norm.
• The formal concept of constitution. It is constitution that text, or normative texts, which within a State have the character of written, superior and aggravated reform norm.
• The legal-formal concept puts special emphasis on affirming that the constitutions translate into a set of documents that are given a special value, which are considered, whether or not applicable, the vertex of the legal system of a society,And which cannot be changed overnight, as can happen with other types of standards. Therefore, there is a marked emphasis to the legal form.

It is convenient to keep in mind two complementary ideas regarding this concept:

1. The formalistic emphasis not only refers to its pure external form, but also implies a certain rigidity for its modification, which must be carried out by certain procedures in the Constitution itself (stiffness in the constitutional reform).
2. Hierarchy of the Constitution, which is the first and upper norm of the entire system. Therefore, the remaining norms, and, especially, the laws approved by the Legislative Power, may not go against the provisions of the Constitution, which comes from the constituent power. There will be constitutional bodies responsible for declaring whether there is contradiction between the Constitution and the law.

We have to know that constitutional democracy as a model of political organization pursues two different analyzes: limit to political power and distribute it among citizens based on an effective guarantee of the fundamental rights of individuals that integrate the political community. In this sense it is a very complex model that bets on a combination of institutions that are oriented towards the guarantee of

The rights of people but also involves their participation in this task. As rights holders, people and citizens must be the protagonists of social life and not mere electors of the government. This requires its participation in various venues (not only in government or representation institutions) and an attitude of constant surveillance and monitoring of the tasks of collective life managers. For this there are mechanisms and institutions oriented to citizen participation and permanent accountability by public authorities. From this perspective to resume Mortati it seems right to argue that the formal constitution of the constitutional democratic model requires a specific material constitution in which the rights holders are relevant actors.

A Constitution in most cases written – which is the Supreme Standard of the Sort and whose content is protected by guaranteeing the rigidity. In principle it must be a clear and accessible document in which the rights of people are collected but the state power apparatus is also designed. This design – the organization of the magistrates – obeys at the beginning of the separation of the powers and places the Legislative Power in a priority position on the Executive and Judicial Powers.

The nuclear content of that Constitution- following the definition proposed by article 16 of the French Declaration of 1789 are the fundamental rights of the persons. As some constitutions have already been advanced, they contain more rights than others but, as a characteristic of the model, they are generally recognized together with classical freedoms (personal, thought, meeting and association), political rights and some social rights (to education, to work, to health, basically). In many contemporary constitutions these rights are collected through abstract principles (dignity, freedom, equality, happiness, etc.) that are susceptible to controversial interpretations. 

While the separation of powers is in itself a guarantee for rights, in contemporary constitutional democracies there is a multiplicity of institutions that have the same purpose. From institutes avocado to guarantee transparency in government management to figures such as ombudsman who have the specific purpose of providing non -jurisdictional protection to the rights of people. The data to be underlined is that the recognition of rights is usually accompanied by a broad set of guarantees of them.

Constitution concept in Ecuador

The Ecuadorian Constitution of 2008 was distinguished by incorporating a very broad catalog of fundamental rights written with open formulas. In this way, the fundamental formal features of democracy of the Constitution were defined (which is an extra -constitutional element), broad recognition of rights (with the declared intention to combat inequality and social exclusion) and absolute predominance of the constituent power over theconstituted powers.

One of the greatest transformations of legal science occurs when a Constitution ceases to be taken in gutter as a mere political document of a orientative nature and is an interpretive document and applies as a legal norm, to this change in conceptionThe location of the constitutional text as the fundamental norm of the legal system is added to the law of the constitutional text of the current models of constitutionalism, it cannot do without verify. The existence of courts responsible for interpreting and applying the constitution of the vertical effect, the fundamental rights to the relationship between individuals and the State that extended horizontally to the interactions between private. The constitution of law and procedural mechanisms of immediate direct enforceability of fundamental rights constitute some of the most relevant consequences in the conception of the Constitution as a legal norm.

In each legal system, the relationship between the different regulatory levels produces interesting debates that have been resolved by the legislator by the judges according to their own context with a comparative perspective.

conclusion

From the previous analysis the following conclusions arise:

• Regarding histotia, an evolution was presented from the Greek and Roman mixed constitution, the fundamental statutes and laws of the Middle Ages, to the modern constitution as a fundamental legal norm of the State.
• He mentions that constitutionalism was born as an ideological and political movement, due to the need for a democracy and power to be in the people the movement that was historically called constitutionalism was not, obviously, to introduce into the systems a norm called Constitution, but to ensureThe guarantee of freedom against public power. The company has a constitution, that the State is constitutional, that the organization of the powers corresponds to a certain purpose, the assurance and guarantee of the freedom of citizens.
• The word Constitution is in its origin loaded with political meaning;Immediately evokes ideas such as freedom and democracy, guarantee of citizens’ rights, limitation of power.
• The Constitution is a supreme norm;The public authorities are subject to it and the infraction is unlawful and is declared unconstitutional by the constitutional courts. The constitutional norm has superiority about the legislation, it is a source of all normative creation and of all acts of its application.

We do not know if the notion of ‘constitution’ understood as ‘written constitution’ was really a construction made by jurists, philosophers, politicians or doctrinals, as could have been the French case, or if it was the result of the legal and political experience, asIn the case of the United States it suggests;The truth is that, as for the meaning of ‘Constitution’, most subsequent political movements acted according to that notion. Since then, the written constitutions, which create, define and limit the exercise of government power, have been the general rule in almost the entire constitutional world and ‘constitution’ generally designates that ”. That is, the term written constitution is currently used to refer to the organization, exercise and management of political power.

The Constitution is the fundamental legal norm of the legal system. As we have expressed from the fundamental nature of the Constitution, it manifests itself in several ways. First, from a sociological point of view, the Constitution formulates the values that are valid for a community and is the consequent expression of the social forces and elements that represent them. If we see them from the political point of view, the Constitution contains the minimum of elements so that a political or state community can exist and that printed a specific form. From this point of view, the Constitution is the essence of order. From the legal point of view, the Constitution is the foundation or base on which the rest of the system rests. The Constitution is the major premise from which the remaining laws derive. The Constitution is the source of the entire legal system, establishes the governing bodies and the content of its powers.

On respect for human dignity, at the work and solidarity of the people who integrate it and in the prevalence of the general interest. That is, the Colombian State is social, and democratic, participatory and pluralistic. The Constitution must be applied and for this is an effective constitutional control.

All constitutions must have a connection with the constitutional reality and when it is modified, the Constitution must be reform.

In Ecuador, a new social coexistence pact with characteristics that contrast with the situation we had lived with the new Constitution of 2008. This new social pact seeks to travel from the privilege society to a democratic society of all;that is, to the construction of a society and state project for all, not particularist. This implies building a democratized and democratizing accumulation pattern.

The concept of constitution could be said from this perspective that the Constitution would be "the way or way of being of a thing or reality". As is obvious, a similar definition is not limited to the legal world, but can be applied to any being: for example, it is said of a person who has a strong or weak "constitution". From this perspective, every organization of political power has a constitution, and every State has its own, that is, a peculiar way to organize power relations between rulers and governed.

Our Constitution of Ecuador since 2008 is characterized by having established new rights and institutions of the legal system, these in turn have as distinctive ranges an essentially guarantee content, that is, their primary role is the defense of fundamental rights such a vision guaranteed in the ConstitutionIn force, the creation of new jurisdictional guarantees has arranged.

Bibliography

1. Enrique Álvarez Conde: Constitutional Law Course.
2. Mauricio Fioravanti: Constitution, Trotta, Madrid, 2001, P. 17.
3. Rolando Tamayo and Salmorán: Introduction to the study of the Constitution, 1st ed. Corregida, Fontamara, Mexico DF, 1998, P. 24.
4. Aristotle: Politics, III 3, 1276b, pp. 1-16.
5. Mauricio Fioravanti: o. cit., p. 22.
6. Aristotle: Politics III, 7, 1279th 22-42, 1279b1-11.
7. Sánchez Freís: o. cit., p. 33.
8. CICERÓN: DE RE PUBLICA, I, XLV. ( Reading )
9. Fioravanti, or. cit., p. 3. 4.
10. Bobbio, Norberto and Bovero
11. Agustín Grijalva Jiménez Ecuadorian Constitutionalism
12. J. Locke: Second Treaty about the Government
13. Montesquieu: The spirit of laws