Ral Gustavo Ferreyra

An Approach to the Legal World1

Constitution and Fundamental Rights

Ral Gustavo Ferreyra

I. Starting Point

Law is a creation of men.

Law rules or norms always regulate or determine, directly or indirectly, the
conduct of men. Hence, Positive Law, a result of human discretion, is a variable
entity or thing which may be subject to changes.2
Knowing any legal system from an objective standpoint means to elaborate
arguments in the form of propositions. Legal knowledge must demarcate and
distinguish the entities it includes and those it excludes;3 how Law is defined
determines decisively what is to be comprised by its scientific study. The function
of knowledge of the legal system always allows for three types of observations or
faces the same number of problems.4
To wit:
First, the consistency or inconsistency of the legal systems rules with superior
values on which a given ideal of justice is patterned. In these cases, concerns
relate to the axiological foundation of the legal system, given that stating that a
legal system is fair or unfair amounts to raising the problem of correspondence
between what reality is and what a particular ideal suggests.

1 This contribution is, to some extent, a summary of my studies of Law, which began in 1978, and its practice,
which began in 1983. In the area of theory, I have been really lucky to enjoy the possibility of having critical
dialogues with Germn Jos Bidart Campos and Eugenio Ral Zaffaroni, true leading authorities in their fields.
Outside the School of Law of the University of Buenos Aires, where I received my legal education, the
conversations I held with Peter Hberle, another authority in his field, have also had an important influence. I
feel grateful to all of them. In the field of the practice of the Law, I also had the luck to talk daily with attorney
Ricardo Arturo Kelly, a real exponent of the philosophy of language with British roots; as a sign of our
friendship, I dedicate this work to him, at the moment I am fifty years old! Finally, this contribution is my
inaugural lesson as tenured professor of Constitutional Law in the School of Law of the University of Buenos
Aires, since August 2010.

2 Kelsen, Hans, La doctrina del Derecho natural y el positivismo jurdico, translated by Eugenio Bulygin, in
Academia. Revista sobre enseanza del Derecho, year 6, volume 12, Departamento de Publicaciones de la
Facultad de Derecho de la Universidad de Buenos Aires, Buenos Aires, 2008, 184.
3 Zaffaroni, Eugenio Ral et al., Derecho Penal, Ediar, Buenos Aires, 2000, 3.
4 Bobbio, Norberto, Teora General del Derecho, Temis, Bogot, 1997, 20 & ff.

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Second, the structure of the rules on which the system is based. Here, the
problem relates to the existence and the very shaping of legal rules. The
ontological problems of Law are examined from this approach.
Third, the analysis of the problems deriving from whether or not the rules making
up such legal systems are actually observed by the target persons or organs and, if
such rules are infringed, how those legal systems are enforced (by means of
coercion) by the authority who imposed them. In this case, the gamut of problems
is related to the effectiveness of the legal rules forming a normative system. This
aspect leads to the analysis of the sociological problems of Law.
The ontological or structural approach prevails in this contribution and
determines conceptually the object of study. Stating that Law shapes social control
and the social architecture in determining the conduct of citizens and authorities
entails admitting its normativity as an important feature. Law is a complex system,
made up mainly5 of rules on the planning, organisation, and application of force,
which is expressed through the discourse created by the branches of power of the
State.6 In this context, we may verify the assertion that this shaping of the exercise
of power, which is rationally planned and made by Law, may be characterised as
the reason of force.
Reason of force?7 Yes, reason of force, which simply means that Law shows
or tries to show how its rules organise and frame the plan for the execution of
power as decided by the State. Nothing else.
Would you say that this may give rise to injustices? No doubt. That by means of
this reasoning one may argue that Law would only be the expression of the
strongest and not that of the fairest? No doubt either. There is also no doubt that
this creates community alarm, and not without reason.

5 Bulygin, Eugenio, Sobre el problema de la objetividad del Derecho, in Several authors, Las razones de la
produccin del Derecho. Argumentacin constitucional, argumentacin parlamentaria y argumentacin en la
seleccin de jueces, coordinated by Nancy Cardinaux, Laura Clrico, and Anbal DAuria, Departamento de
Publicaciones de la Facultad de Derecho, UBA, 2006, Buenos Aires, 40.
6 Regarding language and Law, that is, the form or forms that the expression of the Law may paradigmatically
assume, see, for example, (i) Alchourrn, Carlos E. and Bulygin, Eugenio: It does not seem to be debatable
that norms may be expressed through language, i.e., through statements (Introduccin a la metodologa de las
ciencias jurdicas y sociales, Astrea, Buenos Aires, 1992, 99); (ii) Carri, Genaro: Legal norms are made up of
words having the characteristics of natural languages. This is not a merely accidental circumstance. But it is
not a serious defect or a failure that may be corrected with the technique of social control called "Law."
Therefore, it may be asserted that legal norms not only use natural language, but, in a way, they must do it
(Notas sobre derecho y lenguaje, Abeledo-Perrot, Buenos Aires, 1994, 47).
7 The term razn (reason), according to the lexicographical definitions offered by the Dictionary of the Royal
Spanish Academy (DRAE, for its Spanish acronym), has more than fifteen meanings. In this essay, the term is
used in a weak sense, as follows: (a) information by means of language about the organization of force;
or, more precisely, (b) use, for example, of some of its meanings in a specific manner: words or phrases with
which discourse is expressed (the third one) or order and method in something (the sixth one); and, one more
sense added by myself: (c) the power of the State. The meaning of the expression reason of force describes,
in this context, that Law expresses the discourse of power and/or that Law organises the use of state coercion.
Force? Intervention or threat of intervention aimed at creating and/or maintaining a legal system, with the
orientation desired by the people exercising power.

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The theoretical thrust of this essay (see, especially, section IX below) consists in
an analysis of the complexity of Law which, without fully coinciding with any of the
versions provided by legal positivism, draws on a preferential interpretation of the
fundamental rights with constitutional rank. How does this work? It is propounded
that the fundamental rights included in constitutions may be used as effective lines
of action for the use of state force, shaping or strengthening, depending on the
situation, the pathways along which each citizen may freely choose and decide,
individually, in group, and/or collectively, and with equal opportunity, to develop
their life plan.
Without any conclusions being advanced at this point, the course of thought may
be described by the following two propositions: Law is the reason of force, and
reason means both (a) description (and legality) of coercion, and (b) its rational
argumentation.8 In both cases, the objective knowledge of Law9 is the aim sought,
that is, the definition of its identity and the basics of its scope.

II. Definition of Law

If such a prestigious humanist as Norberto Bobbio has held that to cultivate a field
as immense as Law one needs a powerful tractor and that the only tool he had was
a pair of pruning shears, my ambitions cannot but be more modest, and I do not
believe that the results of this endeavour may serve as food for thought for those
devoted to the study of the problems of the general theory of Law.10 However,
considering Law as an artifice, in accordance with the meaning attached to it by
11
Jean-Jacques Rousseau, is a key proposition. Law is a cultural creation,12 i.e., a
result of the activity of men. However, in the course of history, human beings many
times have proved that irrationality, in producing and applying Law, shows that
men can build a culture and also destroy it.

8 On the functions of argumentation and description, see, for example: Popper, Karl, Conocimiento: subjetivo
contra objetivo, in Escritos selectos, compiled by David Miller, Fondo de Cultura Econmica, Mexico, 1995,
6182.
9 Barbarosch, Eduardo, La objetividad en la moral y en el Derecho, in Ideas y Derecho, Anuario de la
Asociacin Argentina de Filosofa del Derecho, year 5, volume 5, Rubinzal Culzoni, Buenos Aires, 2005, 85
102.
10 Bobbio, Norberto, Contribucin a la teora del Derecho, translated by Alfonso Ruiz Manero, Torres Editor,
Valencia, 1980, 12.
11 Rousseau asserts: Since no man has a natural authority over his fellow, and force creates no right, we
must conclude that conventions form the basis of all legitimate authority among men. [...] [T]he fundamental
compact substitutes, for such physical inequality as nature may have set up between men, an equality that is
moral and legitimate, and that men, who may be unequal in strength or intelligence, become every one equal
by convention and legal right (El contrato social, Altaya, Barcelona, 1993, 8 and 23).
12 Maier, Julio, Derecho Procesal Penal, Fundamentos, volume I, El orden jurdico, Editores del Puerto,
Buenos Aires, 2004, 6. Also see: Hberle, Peter, La constitucin como cultura, in Anuario Iberoamericano de
Justicia Constitucional, translated by Francisco Fernndez Segado, volume 6, Madrid, 2002, 177198.

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The definition of Law has caused, causes, and will certainly continue to cause
discomfort, controversy, confusion, difficulties, and perplexities. And the list of
effects may go on.
Asking oneself what Law is places one in an extremely vague and ambiguous
situation. If we only focus on the production of legal knowledge during the twentieth
century, the answers will be dissimilar and contradictory. For example, Herbert
Hart held in 1961 that there is not a vast literature to answer the questions What is
medicine? or What is chemistry?, as opposed to literature providing an answer to
13
What is Law?, which is abundant.
The words forming the basis of the language have a wide variety of meanings.
The term Law is highly polysemous. If one gives up in advance in the search of
definitions aimed at explaining its essential and natural properties, it is found that
Law has several meanings in use, both in the language of legal scholars and in
the language of legal sources. In the language used by legal scholars, at least two
orientations may primarily be distinguished, which are closely related.
In its first meaning, from an objective standpoint, Law is used to designate a
legal system or order, or a body of legal norms in force at a given point in time and
space, or a combination14 of primary and secondary norms and other non-
normative statements.
A second meaning of the term refers to Law not as a system or order, but as the
name given to the scientific discipline or body of knowledge or ideology the object
of which is the identification and/or systematisation and/or assessment through
the use of tools from logical and/or empiric and/or assessment fields of the
complex reality created through objective Law. This means that both the study of
the object as well as the object of study receive the same name. For all meanings
the same linguistic sign is used: Law.
In Spanish, the word for the above meanings is Derecho, which is also used to
mean right, i.e., a power, claim or privilege held by a person or a group of
persons. Although this polysemy is not an insurmountable obstacle, it certainly
does not favour legal research and reflections.
Among all the meanings of Law, the one especially taken into account in this
essay is that of Law as a legal system. It should be pointed out that this
delimitation does not guarantee in itself a successful result. It just helps to spread
the pieces on the board and then plan a further strategy. That is all. Because
delineating the boundaries of the first meaning of Law, even if understood in an

13 Hart, Herbert, El concepto de Derecho, translated by Genaro Carri, Abeledo Perrot, Buenos Aires, 1992,
1. The author posed those questions in reference to the time of publication of the English version of the book
cited.
14 Julio Maier describes Law as the combination of rules including specific duty norms, facultative norms, and
permissive rules. See Maier Julio B. J., I. El orden jurdico, in Derecho procesal penal. Fundamentos, volume
I.A, Hammurabi, Buenos Aires, 1989, 9495.

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imprecise, simplified, and light manner as a combination of norms, entails serious

problems.

It is accurately pointed out that legal systems designate a body of legal norms
the components of which are usually traceable to a common rationale for their
validity typically, a constitution. Admitting that Law is a system can be
understood in at least two senses: (a) assuming that Law is a system implies
admitting that Law commands and establishes a certain order; (b) on the other
hand, assuming that Law is a system means that Law is something organised,
15
consistent, and maybe tendentiously complete. In the following considerations,
Law is featured most of the times, implicitly as a system that tries to establish
a certain order or whose rules govern the use of coercion.
Stating that Law is a system also entails admitting that such system is mainly
made up of norms or rules developed in a variety of ways and which may be
observed from both a static and a dynamic standpoint, but are always produced by
men.16

III. Law, a Body of Rules Relating to Force, Which is Expressed Through Primary
and Secondary Rules

It cannot be proved because reality shows the contrary that the main feature
of Law is that its rules are guaranteed or protected by force. Everything indicates
that it is safer to assert that Law primarily comprises rules relating to force. Rules
that set standards for the use of force. Viewed as a system, Law is a body of rules
about the organisation and use of force, whose expression is materialised by the
discourse generated by the State. The term Law, used to mean the organisation
and application of state force, is synonymous with statements making up a
normative system. These provisions or statements have one particular feature in
common: they are rules conceived with the idea of governing state force.
However, it should not be forgotten that Law is not a neutral instrument, given
that its body of rules and its application are always based on philosophical and
ideological premises. That is why Law is said to be an instrument for social control.
It must be added that the rules of conduct which form the basis of Law are also a
tool rationally used by men to regulate coexistence.

15 Guastini, Riccardo, Distinguiendo, Gedisa, Barcelona, 1999, 352.

16 Mario Bunge explains that the simplest analysis of the concept of system includes the concepts of
composition, environment, structure, and mechanism. The composition of a system is the collection of its parts;
the environment of the system is the collection of things acting over its components, or the other way around;
the structure of a system is the collection of the relationships, especially links among its components, as well
as among these and the components of the environment; lastly, the mechanism of a system is made up of the
internal procedures which enable its operation, i.e., to change in some aspects while conserving others. (See
Bunge, Mario, Emergencia y convergencia, Gedisa, Barcelona, 2004, 2560, and Filosofa y Sociedad, Siglo
XXI editores, Mexico, D.F., 2008, 948.)

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Law is comprised of the whole positive legal discourse in force in a given State.
It is built gradually, step by step, with the prescriptive language produced by the
17
States branches of power.
Broadly speaking, the States branches of powers with competence to create
this prescriptive discourse are the following: (a) constituent powers (whether
original or derivative), and (b) constitutional branches of power. The original
constituent power is the power creating the first Constitution or the law with the
highest rank in a State, i.e., a prescriptive legal norm which shapes the architecture
and control of the functions of the States branches of power and embodies the
fundamental rights of persons or groups. It is the prescriptive language par
excellence, because all the legal systems provisions ranking below the
Constitution trace their validity to such Supreme Law and, therefore, may be
considered, roughly, as derivations or appendices of the constitutional prescriptive
discourse.
Law, hence, may be seen and understood as a social fact, whose discourse
frames the social architecture while giving content to the rules required by the
organisation and use of the state force which decides to implement it. Based on the
analysis of this complex phenomenon of legal systems, it can be asserted that their
more outstanding properties are norms and prescriptive practices.
Mainly for didactic purposes,18 the legal system can be said to comprise, at
least, two types of norms, depending on their function and their targets:19 (a)
primary norms, which establish rights, obligations, or prohibitions for people, and
(b) secondary norms, which grant powers to government officials, establish
sanctions, or regulate changes within the system. There also are provisions which
are not normative, but have an impact on the normative effects of other
provisions;20 an example is the preamble to the Argentinas Federal Constitution:
[...] in order to form a national union, guarantee justice, secure domestic peace,
provide for the common defence, promote the general welfare and secure the
blessings of liberty to ourselves [...]. Six basic rules for community order.

17 Bobbio states, in his famous essay Ciencia del Derecho y Anlisis del Lenguaje, that jurisprudence is the
scientific analysis of the lawmakers discourse or the language of laws. Such essay is included in Contribucin
a la Teora del Derecho, Torres Editor, Valencia, 1980, 186 & ff.
18 The use of primary and secondary norms in the field of legal knowledge reveals significant differences
among the various sources. Moreover, the demarcation criterion between primary norms and secondary norms
may be a result of an axiological consideration, a chronological issue, or a functional aspect. In this essay, the
functional aspect is chosen, but it must be noted that, in fact, it cannot be disregarded that norms granting
status to fundamental rights are also aimed at government officials, because they are also citizens and, as
public servants, they should observe those norms. In turn, the rules called secondary here also affect the
activity of citizens, given that in a constitutional State the boundaries of power are regulated. In the theory of
Hans Kelsen, the true legal norms would be the norms called secondary here, but, strictly speaking, they
should be called primary because they would be the only important norms of the system. This being said, the
distinction is kept for the purposes and the orientation mentioned in the body of this essay.
19 Bobbio, Norberto, Contribucin a la Teora..., op. cit., 317.
20 Alchourrn, Carlos E. and Bulygin, Eugenio, Introduccin a la metodologa de las ciencias jurdicas y
rd
sociales, 3 reprint, Astrea, Buenos Aires, 1998, 106108.

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In his work On Law and Justice, published in 1958, Alf Ross held, when
wondering how to distinguish the content of a national legal order from other
individual bodies of norms, such as chess or courtesy rules, that a legal order is a
body comprising rules determining the conditions under which physical force must
be applied against an individual; the national legal order establishes a structure of
public authorities (courts and government bodies) whose function is to organise
and apply force in specific situations. More briefly: a national legal order is the body
21
of rules for the creation and operation of the States structure of force. Within this
legal order, Ross accepted that norms could be divided or classified into two
groups, depending on their immediate content: conduct norms (within the field
named primary norms in this essay) and competence norms (power, authority).
The former prescribe a line of action, while the latter create a competence or an
22
authority.
Ross criticised the point of view that Law was made up of rules backed by force.
Moreover, he specified that the relationship between legal norms and force lies in
the fact that legal norms refer to the application of force, and not in the fact that
such norms are backed by the use of force. He thereby rejected that competence
norms which would be comprised by what is called secondary norms in this
essay were the only norms making up the legal order.
Moreover, Ross asserted that Law has two distinctive features: (a) it is made up
of rules concerning the use of force, and (b) it is made up of conduct and
23
competence norms.
Consequently, primary norms and secondary norms are, in this context,
combined by a relationship of a functional nature. From this approach, it is the
system considered comprehensively that has a prescriptive nature and lawfulness
is a property of the normative system considered fully and jointly, and not of the
norm considered in isolation.
There are no further difficulties in recognising that coercion is a property of the
legal system, and not of the norm in itself.
However, Hans Kelsen the most prominent and influential legal scholar of the
twentieth century pointed out, in his work Main Problems in the Theory of Public
Law, Developed from the Doctrine of the Legal Norm, published in 1911, that the
essence of the legal norm with respect to the subjects of Law is that it obliges
them; the different legal duties of the subjects of the organs of the State, or the
State itself, are a creation of the legal order, which is nothing but the addition of
Law norms.24 Due to their imperativeness, that is, their eminently punitive nature,

21 Ross, Alf, Sobre el Derecho y la Justicia, translated by Genaro Carri, Eudeba, Buenos Aires, 1994, 34.
22 Ross, Alf, op. cit., 32.
23 Ross, Alf, op. cit., 57 & ff.
24 Kelsen Hans, Problemas capitales de la teora jurdica del Estado, desarrollados con base en la doctrina de
la proposicin jurdica, translated from the second German edition by Wenceslao Roces, Porra, Mexico,
1987, 271.

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only the norms called secondary norms in this essay would really be part of the
legal system.
Years later, in 1960, Kelsen, in the second edition of Pure Theory of Law,
moderated his position in distinguishing between independent and dependent legal
norms: It follows that a legal order may be characterised as a coercive order, even
though not all its norms provide for coercive acts; because norms that do not
themselves provide for coercive acts (and hence do not command, but authorise
the creation of norms or positively permit a definite behaviour) are dependent
norms, valid only in connection with norms that do provide for coercive acts.25
If it is accepted that secondary norms are strictly the only ones which make up
the state legal system, it is interesting to describe some consequences of this
theoretical structure with Kelsenian roots, or take it to the extreme, with an
example. Such proposition may be expressed as follows: all legal provisions
comprising an order and regulating labour law (unions and employment), or the
right to teach and to learn, or freedom of speech, etcetera (e.g., primary or conduct
26 27
rules contained in sections 14 bis and 14, respectively, of the Argentinas
Federal Constitution), as long as they do not set sanctions i.e., they are
dependent norms , will acquire their legal status only in connection with other
norms of the system which establish sanctions or coercive acts with respect to the
lines of action set by such norms.
Actually, and as analyzed below, the problem of this structure is not the
dissatisfaction it creates. For now, I am just mentioning the example in advance,
along with the criticism it may receive: currently it is incorrect to state that
constitutional rules recognising fundamental rights are not norms setting lines of
action to be followed by the state powers. And, therefore, it is also incorrect to say
that it is not feasible to ascertain the coercion degree they have.

25 Kelsen, Hans, Teora pura del Derecho, translated by Roberto Vernengo, second edition, Porra, Mexico,
70.
26 Section 14 bis. Labour in its several forms shall be protected by law, which shall ensure to workers: decent
and equitable working conditions; limited working hours; paid rest and holidays; fair remuneration; minimum
vital and adjustable wage; equal pay for equal work; participation in the profits of enterprises, with control of
production and collaboration in management; protection against unfair dismissal; stability of the civil servant;
free and democratic trade union organizations recognised by mere registration in a special record.
Trade unions are hereby guaranteed: the right to enter into collective bargaining agreements; to resort to
conciliation and arbitration; the right to strike. Union representatives shall have the guarantees necessary for
carrying out their union tasks and those related to the stability of their employment.
The State shall grant the benefits of social security, which shall be comprehensive in nature and may not be
waived. In particular, the laws shall establish: compulsory social insurance, which shall be in charge of national
or provincial entities with financial and economic autonomy, administered by the interested parties with State
participation, with no overlapping of contributions; adjustable retirements and pensions; full family protection;
protection of homestead; family allowances and access to decent housing.
27 Section 14. All the inhabitants of the Nation are entitled to the following rights, in accordance with the laws
that regulate their exercise, namely: to work and pursue any lawful industry; to navigate and trade; to file
petitions with the authorities; to enter, remain in, travel through, and leave the Argentine territory; to publish
their ideas through the press without previous censorship; to make use and dispose of their property; to
associate for useful purposes; to profess freely their religion; to teach and to learn.

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IV. Constitutional State

An overarching feature of the constitutional State is that the coexistence of men is

regulated by Law. For the citizen, legal order is presented as a body of rules
determining the conditions under which one is to behave with respect to others.
Most legal positivist doctrines usually admit that the two differences marking a
boundary between legal systems and moral, religious, or social treatment systems
are that (a) legal systems establish the application of external sanctions for cases
of inobservance of the conduct regulated, which in turn may result in the use of
physical force, and (b) the monopoly of coercion is in the hands of the State, i.e., it
is institutionalised.
If coercion is considered a key element of legal systems, it is reasonable to
believe that the following assumptions are correct: (a) only Law can limit power, but
only power can create Law; (b) the State, understood as a social organisation
monopolising the use of force, also monopolises the production and enforcement
28
of legal provisions. The existence of force or coercion monopolised by the State is
the distinguishing feature of legal systems considered as a whole, as bodies of
primary and secondary norms, and not an isolated characteristic of one or more
provisions making up the system, which may not be prescriptive. Therefore, force
is to be found both at the inception of Law and in its enforcement.
However, there is one more important question to examine. The State, which
creates Law, may be seen in two ways in relation to Law: as an end or as a means.
We now turn to the review of these two possibilities.

V. State as an End

If the State is not seen as a means for the protection of fundamental rights (simply
because reality prevents such assertion from being realised), it would be difficult to
argue against the idea that Law is, and probably will be, the law of the strongest.
This does not mean that the use of force cannot be fair. Of course it could be fair;
this possibility cannot be ruled out. What I wish to point out is that, within this
structure, force is fundamental; it is the expression of the strongest. The self-
explanatory phrase law of the strongest has nothing to do with the approval or
rejection flowing from certain legal systems based on ethical or justice reasons, as
29
asserted by Ross. And it will be the law of the strongest if it is understood that
norms here called secondary are the real norms of the legal system
(Kelsen), or the only norms that may grant lawfulness to it, because only they

28 Bobbio, Norberto, El futuro de la democracia, Planeta-Agostini, Buenos Aires, 1994, 14.

29 Alf Ross said: "It has been maintained that Hitler's rule of violence was not a legal order, and juridical
positivism has been accused of moral treason for its uncritical recognition of such an order as being law. But a
descriptive terminology has nothing to do with moral approval or condemnation. While I may classify a certain
order as a legal order, it is possible for me at the same time to consider it my highest moral duty to overthrow
that order (see Sobre el Derecho y la justicia, op. cit., 32).

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establish sanctions or grant the power to do so, given that in this case it is
argued the feature of force or coercion is the content itself of the regulation
made by Law.
I believe that, for these schools of thought, Law may be characterised as the
reason of force, an expression whose content, by the way, has very high
probabilities of empiric corroboration in reality all over the world. It is useful to
define, as clearly as possible, what is meant when it is asserted that Law is the
reason of force. The idea is to highlight that it is precisely this regulation of the
coercion deployed by Law that sets it apart form other normative systems or
orders, such as, for example, morality or religion.
Moreover, it is noticeable that in this theoretical approach that defines Law as
the reason of force, the word reason is used in a very weak sense as order or
method in something, and this should be viewed in conjunction with the idea that
the principles and rules that form a legal system may be imposed, even
30
coercively. This means that in certain situations force may be used to constrain
people, including through the use of physical violence, to observe specific
provisions of the legal system. The fact that Law is often effective in a spontaneous
way, without the need to resort to the use of state force, does not invalidate the
assertion that coercion is a distinctive feature of legal systems.
In this context, the use of reason may be understood and distinguished from a
variety of approaches, of which I will choose two, due to their importance: the
epistemological and the normative approaches.
(i) Within the epistemological approach, asserting that Law is the the reason of
force would simply mean that reason is an autonomous guide of men in every field
where research is possible. In this sense, it is held that reason is a quality of men
31
which distinguishes human beings from other animals. Within this framework, the
term reason means capacity to think, and not that men always think. They can.
Nothing else.
Reason, in this context, shows that the use of state force is usually preceded
by a cognitive criterion.
(ii) In the normative approach, the use of the word reason may mean as many
things as follows: (a) to inform about a matter; (b) to refer to the power of creating
discourse, and to the words or phrases used to construct such discourse; or (c) to
refer, more precisely, to the discourse of the States branches of power regulating
the time, manner, subject and amount or degree in respect of the use of state
force. This scope of meaning does not include the what or substance of what
regulations can or must or cannot or must not cover.
(iii) In a weak sense, Law as the reason of force an expression that is but a
category I use to present the generic view of the legal phenomenon posited by

30 Daz, Elas, Curso de Filosofa del Derecho, Marcial Pons, Madrid, 1998, 78.
31 Abbagnano, Nicola, Diccionario de filosofa, Fondo de Cultura Econmica, Mexico, 1996, 978.

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important schools of thought of legal positivism has two meanings: (a) that the
force exerted by men through the State, as opposed to the force existing in the rest
of the animal world, is organised and used based on criteria which may generally
be characterised as the capacity to understand what they have, i.e., based on their
intelligence, and (b) that force is organised and exerted through discourse, whose
normativity is the distinctive manner in which Law is expressed.

VI. State as a Means

However, if the State is considered an instrument, the entity is only legitimised if it

protects and satisfies fundamental rights. Moreover, here the State not only grants
fundamental rights, but also must generate the conditions for their enforcement,
whether by refraining or by providing. In this case, as opposed to the previous one,
the State must legitimise itself through the creation and respect for the environment
needed for fundamental rights to be actualised.
In order to understand this stance fully, it is useful to bear in mind the remark
made by Luigi Ferrajoli to the effect that currently there is a new paradigm in the
history of legal culture. Ferrajoli asserts that most values of justice created by
natural Law supporters in the seventeenth and eighteenth centuries (value of
person, equality, civil and political rights) have been established in modern
constitutions as normative fundamental principles containing limitations the target
32
of which is public power.
Fundamental rights are positive Law inasmuch as they are established in
constitutions the right to equality, from liberty rights to social rights and
constitute, within this interpretative framework, Law on rights. This means that the
rules of fundamental rights regulate, to a degree, the architecture of the contents of
all laws subordinated to the Constitution, and not only the production through
procedural laws on the formation of laws, which was and is a paradigm of classical
positivism. In this line of thought, fundamental rights are always expressions of
laws of the weakest as an alternative to the law of the strongest, which governed
33
and would govern in the absence thereof.

VII. Legal Positivism and Law as the Reason of Force

Legal authors usually debate about the properties that distinguish legal systems
from other normative systems, such as religion, morality, or sports rules. This
ideology, which implies that Law is something different, definitely different from
other normative orders, is a result of legal positivism, understood as a school of
thought, extremely broad in scope. In this view, the legal phenomenon is different
from other normative realities because Law is the organisation and

32 Ferrajoli, Luigi, Derecho y razn. Teora del garantismo penal, Trotta, Madrid, 1997, 218, 355, 356, 357,
and 854.
33 Ferrajoli, Luigi, Derechos y Garantas. La ley del ms dbil, Trotta, Madrid, 1999, 53 & ff.

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 Ral Gustavo Ferreyra

institutionalisation of coercion and does not necessarily depend on morality, even

though they may coincide.
Positivist theories a consequence of the inner human intention of establishing
a certain degree of certainty for and in relationships rely on more valid
arguments to insist on trying to define Law as the legal system whose rules are the
reason of force. This does not imply an unconditional adherence to legal positivist
theories, but the simple empiric verification that most state legal systems in the
world are structured by the Law that is and not by the Law that ought to be, i.e.,
one which would allow for the realisation of fundamental rights and, certainly
enough, more correct legal systems.
It is easy to verify that Law, as an instrument for social architecture and control,
could not have existed without force. Until the twentieth century, Law, as described
in this essay, has always embodied the position of the strongest with more or less
harshness, where the strongest equals power. Three centuries and a half ago,
Thomas Hobbes replied to sir E. Coke that it is not truth, but authority, that makes
Law: The reason of our State, our artificial man, is the law, and not jurisprudence
or wisdom of subordinate judges [...] and law is an order [...] and an order is the
34
expression of willingness of he who commands.
From the above paragraphs it is clear that in the assertion Law has been and is
the reason of force to develop the social architecture and exert social control, the
term reason does not mean fair or correct. Reason is used only as a cognitive
and descriptive attitude of the regulation of state force by the legal system.
At this point, it is worth posing the following questions: (a) may the written
Constitution have an impact on these issues?; and (b) if it does, what is the exact
role of the States written Constitution in this matter?

VIII. The Base of State Legal Systems

Constitution is a basic legal category of the theory and practice of Law. Modern
state legal systems are normative systems with a hierarchical structure. At their
base there is the Constitution, which in turn implies the existence of a normative
subsystem. The hierarchical structure of a given States legal system may be
expressed in simple terms, as Kelsen suggests: assuming the existence of the
35
fundamental norm, the Constitution is the highest level within state law.
The word constitution is used in legal, political, and social language with
different meanings. This is not the place to list all meanings.36 Yet, I do want to

34 Hobbes, Thomas, Leviatn, Fondo de Cultura Econmica, Buenos Aires, 1992, 222.
35 Kelsen, Hans, Teora General del Derecho y del Estado, translated by Eduardo Garca Maynez, Imprenta
Universitaria, Mexico, 1958, 146.
36 See Comanducci, Paolo: Modelos e interpretacin de la constitucin, translated by Manuel Ferrer Muoz,
in Several authors: Teora de la Constitucin. Ensayos escogidos, Manuel Carbonell, compiler, Mexico,
Porra, 2008, 124154.

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 Ral Gustavo Ferreyra

explain in what sense it can be understood that the written Constitution is the
base of the state legal system and what are the hierarchical positions that the
constitutional norm boasts relative to the other norms making up such system, and
if any particular conclusion may be drawn from the foregoing. To achieve this aim,
it will be enough, for the moment, to test the following orientations, which focus on
the constitutions with a certain degree of rigidity such rigidity meaning here that
the Constitution may not be amended through the same procedures established for
the creation of ordinary laws below the Constitution.
Let us see.
From a descriptive and objective point of view, the term Constitution is usually
used to designate a body of rules featuring and identifying state legal systems,
expressed in a document and which are fundamental in relation to the other rules
of the system. In asserting that the Constitution is the norm with the highest rank
within the hierarchy in the legal system, what is exactly meant? A hierarchy can be
37
logical-normative and axiological. I will deal here with the logical-normative
hierarchy: the Constitution ranks formally higher than the norms whose creation is
established in it, because the Constitution is logically previous to the norms below.
The Constitution is the highest norm of the legal system as a result of a positive
decision by the state power. If the Constitution is the norm with the highest rank in
the system, it is not logically possible to go from the upper norm to the lower norm
without crossing the hierarchical distance between them. Denying that distance
would be contradictory, because one cannot go from the highest to the lowest
without crossing the distances in between. This simple example shows the
Constitutions logical hierarchy. The opposite, needless to say, entails a
contradiction.
The constitution is produced and performed by the constituent power; the
remaining legal rules with general scope are created by the federal congress or the
executive department; under exceptional circumstances, by the judiciary. The
constitution, as a norm, is part of the real world as something written, published,
and observed.
The architecture proposed by the constitution, like any other norm, has a validity
sphere and an effectiveness sphere; the term validity is used (following Kelsen:
Teora pura del Derecho, 1998, op. cit., pp. 23-28) to refer to its specific existence.
This means that the constitution orders behaviours, and that a legal norm acquires
validity before being effective.
However, a legal norm is considered objectively valid when the human
behaviour it regulates is actually in agreement with it up to some degree.

37 When it is stated that the Constitution is the norm with the highest rank in the legal system, it must be
understood that such norm is the base of the normative system as a result of the work performed by the
sources of state legal production. International Human Rights Law and/or Community Law or Regional
Integration Law which in some states have constitutional normative status, or which may even be above the
Constitution itself are not a matter for consideration in this essay, not because that topic lacks importance
quite the opposite , but because this analysis only deals with Law as produced exclusively by the State.

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 Ral Gustavo Ferreyra

Effectiveness refers to its respect, observance, or application, and effectiveness

is a condition of validity insofar as effectiveness must be present in the imposition
of the legal norm in order for it not to lose validity. Specifically, it can be noted that
Argentinas federal Constitution, for example, as a norm, is developed in two
spheres: the production sphere and the realization sphere. Once the norm is
produced following rational understanding then observance comes next, that
is, the norm is realized by citizens and by the branches of state power.
Nevertheless, there are different situations in which the realization of the Law
arising from the constitution will require an interpretation which will exclusively be
made by the judiciary. The realization of Constitutional Law, then, will always be
performance or execution of Law created.

Within this field, the Constitution is the master plan structuring the forms and
procedures that every legal production of the States branches of power must
observe. It is beyond any doubt that it is precisely in this relationship of logical-
structural hierarchy between the Constitution and the other norms of the legal
system that the Constitution regulates when, how, who and how much in respect of
the exercise of coercive power.
The Constitution establishes the production of legal rules with general scope;
therefore, it regulates the form and, up to a certain level, the content of the States
legal production.
If Law is the reason of force with the meaning given to this phrase in section
III above , the Constitution would be the paradigm in this construction. Agreeing
on that would amount to admitting that conduct norms (primary norms) written in
constitutional texts are, at the most, indicators or sets of instructions, but lack
normative force and are not capable of granting lawfulness to the normative
system, given that in these normativist approaches the lawfulness of a system is
proposed by its secondary norms. Within this structure, therefore, it is evident that
not all constitutional rules would be in the same relation of higher order and rank
relative to the other norms of the legal system. Fundamental and supreme norms
are only those which determine the forms and system of the State and the
government, respectively, and those governing the production and granting of
legislative, administrative, and jurisdictional power to the organs embodying the
state will.

IX. Fundamental Rights: Lines of Action for the Use of State Force

Deciding whether Law is the reason of force i.e., it has been and is the
38
expression of the strongest, or also the reason of force but in a strong sense
where certain ideals may justify or not the coercion of Law leads us, once

38 Bobbio, Norberto, Teora General..., op. cit., 174.

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 Ral Gustavo Ferreyra

again, to tackling the old and widespread dilemma over the role of the legal
science or knowledge.
Selecting the second alternative entails disregarding some of Kelsens ideas
regarding imperative norms and, at the same time, to objectively note the
39
undeniable role played by fundamental rights in legal systems. The body of
fundamental rights included in all modern constitutions draws significant
demarcation lines for the state task.
It does not seem correct to assert that the force of the legal system is reduced to
the coercion deriving from the so-called secondary norms of the system. Actually,
in legal systems on the hierarchical base of which lie the fundamental rights
whose status is conferred by the Constitution , there can hardly be any doubt
that such rights would be real lines of action, according to the meaning given by
Ross to conduct norms (see section III above). It is undeniable that norms of
competence or of organisation of power, or secondary norms, grant powers to
sanction and amend. But primary norms also have to do with the regulation of
force, given that they usually include the body of fundamental rights and their
guarantees.
In this type of legal system, fundamental rights and their guarantees would
provide the content for the use of force, setting guidelines for its organisation and
40
its consistent application. As taught by the Argentine legal scholar Germn Bidart
Campos, when the Constitution shapes rights and gives them a normative
existence, it does not do so for merely decorative purposes or as an exercise in
palaver or literary style, but rather to give people the possibility to have access to
and enjoy such rights and to enforce them legally before a State which, in
reciprocity, has a limited scope of action and whose power is divided into separate
41
bodies, all subject to control.
There are constitutions which, being the rationale behind the validity of legal
systems, do not limit themselves to shaping a body of procedures aimed at
enabling the planning and application of coercion by the constitutional powers, but

39 Elas Daz explains that the force-reason relationship viewed as a copulative conjunction linkage and not
in disjunctive, contradictory, or conflictive terms may lead to a new conceptualization of Law. The inevitable
reason of force can and must always be analysed and controlled by what we all know as the force of reason
(op. cit., 78).
40 The guarantist technique according to Ferrajoli consists in including values under the form of limits
or duties in the highest levels of the legal order in our case, the Constitution so as to exclude them in the
form of power in the lowest levels, thereby turning the judgments of validity on lower-level norms evaluative in
relation to the norms they must apply. If values were not incorporated in the highest levels, and only the formal
principle that is valid as well as applicable quod principi placuit were included in such levels, the reason for
validity would be reduced to an empiric assertion (verifiable and certain) on the source and the procedures
established for the law to be in force; and in such case, assessments would freely penetrate the language of
laws, without bearing a strict relationship to legality, and the language of judges, without bearing a relationship
to the strict exercise of jurisdiction and being validly equipped with the power of decision as to a legal
designation, but not in the censorship of laws (Ferrajoli, Luigi, Derecho y Razn, op. cit., 877).
41 Bidart Campos, Germn J., El Derecho de la Constitucin y su fuerza normativa, Ediar, Buenos Aires,
1995, 26.

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 Ral Gustavo Ferreyra

also accepting that they are not ends but means state that the fundamental
rights included in them govern the basic environment of a free community life; they
are considered not only as enforceable rights, but also as objective rules of the
system and, as such, formally and not materially, they are lines of action which
must ensure the correct use of state force. This proposition entails a
comprehensive understanding of the complexities shown by the realities created by
these orders. It does not mean setting aside the proposition that the legal activity of
scholars is to describe the state of things that Law shapes and determines.
Naturally, this demarcation may never be complete. It is almost impossible for the
Constitution to establish all the orientations of its realisation. In the constitutional
State, a radical elimination of discretion is unthinkable; discretion is a dominant
feature of the human race.
The German constitutional legal system contains a provision exemplifying
normatively the thesis of this essay. Article 1(3) of the Basic Law for the Federal
Republic of Germany of 1949 establishes that fundamental rights bind the
legislature, the executive and the judiciary as directly applicable law. In this type of
legal system, its true reason would rest on the normative force of its fundamental
rights.
With regard to the Argentine Republic, its state order is currently established by
its Constitutional Law, a human creation stemming from the general rules
contained in the federal Constitution of 1853, as amended in 1860 the historical
Constitution 1866, 1898, 1957, and 1994, and from the rules of International
Human Rights Law with constitutional rank. The supremacy of International Human
Rights Law may be seen as a paradigm of Argentine Constitutional Law. It draws
significant lines of action for both the state and the citizens.42

42 Through the constitutional amendment of 1994, section 75(22) was incorporated: Congress is empowered
[] To approve or reject treaties concluded with other nations and international organizations, and concordats
with the Holy See. Treaties and concordats rank higher than laws. The American Declaration of the Rights and
Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the
International Pact on Economic, Social and Cultural Rights; the International Pact on Civil and Political Rights
and the Optional Protocol thereto; the Convention on the Prevention and Punishment of Genocide; the
International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the
Elimination of all Forms of Discrimination against Women; the Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishments; the Convention on the Rights of the Child, as they may be
in effect from time to time, have constitutional rank, do no repeal any section of the First Part of this
Constitution and are to be understood as complementing the rights and guarantees recognised herein. They
shall only be denounced, where applicable, by the National Executive after the approval of such denunciation
by two-thirds of all the members of each House. In order to enjoy constitutional status, all other treaties and
conventions on human rights shall require the vote of two-thirds of all the members of each House after their
approval by Congress.
Law No. 24820 published in the Argentine Official Gazette on May 29, 1997 granted constitutional rank to
the Inter-American Convention on Forced Disappearance of Persons, adopted at the twenty-fourth General
Assembly of the OAS, under section 75(22) of the federal Constitution. Law No. 25778 published in the
Argentine Official Gazette on September 3, 2003 , granted constitutional rank to the Convention on the
Imprescriptibility of War Crimes and Crimes Against Humanity, adopted by the United Nations General
Assembly on September 26, 1998 and approved by law No. 24584.
Consequently, today thirteen instruments of International Human Rights Law have constitutional status.

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 Ral Gustavo Ferreyra

Certainly, moral concepts have been developed. As a result of that

development, the Constitution features moral principles that have been positivised.
In becoming part of the Constitution, which is a legal norm, moral concepts are
now, under the Law, concepts of positive Law. Therefore, there may but need not
be an overlap in meaning between Law and morality. The distinction between
moral language and legal language remains valid. I recognise, however, that they
are highly indeterminate concepts, but the distinction remains between Law and
morality, between how Law is and how it ought to be, between the description of
Law and its assessment.43
In this context, the word reason may be used to define the term Law as the
reason of force, taking into account that the term may be used in a strong sense
and not just weakly.
In Spanish, the term razn (reason) admits of a large variety of meanings, of
which, for this research, only a couple have been chosen.
In the previous sections (see section III above), the meanings of the term are
explored, as reason may mean, for example, both intelligence and power to
inform over a matter in our case, state force. But razn (reason) under the
44
fourth sense in the DRAE may also be used to mean argument or proof
furnished to support something, and here the argumentation appears as an
intellectual operation that seeks to convince somebody that something is correct. In
this case, the reasons of Constitutional Law, i.e., the fundamental rights
established in the constitutions, would be a guiding catalogue or list for the
fundamental political decisions, which would make it possible to determine what
the power commands through Law, and not only who command or are authorised
to do so, by creating regulations and applying sanctions.
The Argentinas Federal Constitution, for example (mainly in the First Part, First
Chapter: Declarations, Rights, and Guarantees; Second Chapter: New Rights; and
in the Second Part, First Title, First Section, Fourth Chapter: section 75(22)
mentioned above), contains a description of a state of things, that is, a state
desired by the constitutional lawmaker. That state of things can only be rationally
discerned by the lawmaker, provided it is a constitutionally possible world. If the
state of things outlined by the lawmaker in the Constitution is not logically
possible i.e., it cannot be realised; its rules do not satisfy rational standards ,
it will be, from the inception, a false description of reality, which does not coincide
and cannot coincide with the state of things. Only an ideal representing a design of

43 Guastini, Ricardo, Los principios constitucionales en tanto fuente de perplejidad, in Several authors,
Derecho procesal constitucional americano y europeo, first volume, compiled by Vctor Bazn, Abeledo Perrot,
Buenos Aires, 2010, 190.
44 Real Academia Espaola, Diccionario de la lengua espaola, Espasa Calpe, Madrid, 1992, twenty-first
edition, 1731.

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 Ral Gustavo Ferreyra

a possible world may be seriously sustained; if such design is not true, it cannot be
rationally desired by the constitutional power.45
My basic strategy to defend this proposition is that, as stated in section I above,
propositions are statements on the state of things determined by Law.
One last comment of the utmost importance is in order at this point. Attention
must be paid to the use of the term reason in this argumentative dimension. Such
dimension relates to the scope and content of what is commanded through Law
in a constitutional democracy. A possible answer would be that what is
commanded is nothing but the shaping and improvement of the subsystem of
normative statements of a primary nature, which grant constitutional recognition to
fundamental rights. If one of the principal aims of the Constitution is realised by
establishing the fundamental rights, what must not remain undetermined is up to
what extent such measures form an order or a system and how their
progressive development is explained as well as the limits observed or which
should be observed by them, and that aim ought to be one of the basic features of
the theoretical system that seeks to tackle its rational understanding.
At the beginning of this essay, it was stated that the intention was to address the
assertion that Law is the reason of force, the word reason being understood
both as a description of coercion and as a description of its argumentation.
The first proposition has been verified. As an intellectual operation, the
description of reality i.e., the informative tasks on it searches for the truth; in
this sense, it is verifiable that Law is the reason of force, which can be confirmed
merely by resorting to the knowledge of the external world.
The second proposition shows that there is a lot to be done in that respect. The
argumentation over reality seeks to convince others. Anyone arguing that Law
must be the reason of force will be trying to persuade us that the fundamental
rights included in constitutions are decisive in shaping and backing the use of state
coercion.
Turning back to the title of this essay, and to conclude, I may assert that Law,
understood as the reason of force in a weak sense, is the legality stemming from
the prevailing legal system. And Law, understood as the reason of force in a
strong sense, is the argumentation for a renewed realisation of the legal system.46

45 Von Wright, George Henrik: Ser y deber ser, in Several authors, La normatividad del Derecho, compiled
by Aulis Aarnio, Ernesto Garzn Valdes, and Jyrki Uusitalo, Gedisa, Barcelona, 1997, 98.
46 I wish to thank legal translator Mariano Vitetta, who translated this essay
from Spanish; and lawyers Sebastin Toledo and Leandro E. Ferreyra
and student Juan Ignacio Ferreyra for their valuable lingistic observations to the original
version of this article.

18