De kelsen a la contradicción de tesis 293/2011: los conflictos normativos entre jerarquías formales y decisionismo

Abstract

The starting point for this work is two-fold: from a theoretical standpoint the relationship between the hierarchy of norms and (monist or pluralist) theories regarding the relationship between legal systems is questioned, and from a practical standpoint, the Supreme Court of Justice’s posture on the following issue is reconstructed: what should judges do when they are faced with a conflict between a restrictive constitutional provision restricting human rights and an international norm protecting them? To provide an answer that is not merely ideological, several distinctions must be made: between hierarchy and supremacy, between norms and normative positions, between rules and principles, and the ambiguity of human rights restriction must be taken seriously. Given the complexity of the result of the combination of all the key concepts, it is not surprising that, beyond the Supreme Court’s published theses, neither the constitutional nor the international point of view provide the correct answer for the toral question. There will only be, on a case-by-case basis, more or less wellfounded decisions.