La internacionalización de la Carta Magna española de 1978: signo de madurez constitucional

Abstract

Abstract : This papers adopts as a starting hypothesis the relative degree of influence of international standards in the drafting of the 1978 Spanish Constitution and the absolute need to accommodate to the reality of an integrated State at supranational and international levels. In this sense, a first approach shows that, despite the potential role of constitutional clauses opening to international standards, and after four decades since the entry into force of the Spanish Magna Carta of 1978, constitutional justice and constitutional doctrine have not shown clear nor open behaviour towards international legal requirements, with the exception of its relative enthusiasm towards European parameters. Indeed, in the main part of this paper, the analysis of the past forty years of democratic constitutionalism under the 1978 Constitution reveals, first and foremost, an interpretative deficit based on more favourable international solutions, as well as an incorrect and unexplored view of the impact of international treaties within the constitutional system of sources of law. Secondly, the positive impact of international standards is examined in connection with both the «dogmatic part» (constitutional values, principles and rights) and the «organic part» of the Constitution (separation of powers and territorial organization of the State), without forgetting the weight of international instruments in defending the constitutional order (ordinary —constitutional court— and extraordinary —constitutional amendment— mechanisms). Thirdly, the social responsibility of Universities in their teaching and research (especially in conflicting domestic situations) is submitted to scrutiny, in order to show its key role in transferring advanced knowledge to society without trivializing the importance of both international law and constitutional law in the democratic defense of the constitutional order. Finally, the place that constitutional norms occupy in international treaties, as well as the impact of notions such as (national) margin of appreciation, constitutional identity and others, are proposed so as to complete the analysis. The main conclusion of this paper holds the necessary feedback of international and constitutional standards, since these positive synergies (including a global judicial dialogue) will continue to promote the strengthening of a «constitutional feeling» under the 1978 Spanish Magna Carta, which is inserted in an increasingly globalized context.