Abstract

BENITEZ R., Vicente F.. DEMOCRATIC AND CONSTITUTIONAL LEGITIMACY OF IMPLICIT AMENDMENTS TO THE CONSTITUTION BY CONSTITUTIONAL JURISPRUDENCE IN COLOMBIA. Vniversitas [online]. 2011, n.122, pp.303-333. ISSN 0041-9060.

Constitutional mutations or implicit changes to the Constitution arisen as a result of constitutional case law, have not been widely studied by the national doctrine despite of their theoretical and pragmatic implications. Therefore, this article -which is a product of the research line: Constitutional Justice and Practical Philosophy of Sabana University School of Law- tries to offer a general perspective about constitutional mutations, as well as, their limits and effects in Colombia. The author takes the democratic and constitutional legitimacy of some constitutional mutations as a reference point in order to argue that one of the limits of these implicit changes -at least from the dogmatic part of the Constitution- is the non regressivity when it comes to the protection and guarantee of the minorities' rights, because by means of this premise (i) some constitutional principles are fulfilled, and (ii) the aforementioned limit goes hand in hand with the concept of democracy in the substantial view defended by Luigi Ferrajoli.

Keywords : Constitutional mutations; Constitutional Court; substantial democracy; judicial creation of constitutional rights.

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