Normative reviviscence. Theses that support the possibility of conferring validity to expressly repealed norms

Abstract

Normative reviviscence is a hermeneutic solution within the constitutional interpretation, by means of which the Constitutional Court, upon declaring a legal norm unconstitutional, orders the reincorporation into the legal system of norms expressly repealed by the Congress of the Republic, becoming effective in order to guarantee the constitutional supremacy and the prevalence of fundamental rights. This figure can be understood under three theses that explain its legal nature as follows: (i) restrictive thesis, which prohibits the reincorporation of expressly repealed norms to the legal system for violating the principle of legal certainty, since the technique is assumed as an invasion of the functional competence of Congress, ignoring that the Constitutional Court must act as a negative legislator, (ii) broad thesis, which accepts the automatic reincorporation of norms without the need for an express declaration by the body in charge of the Control of Constitutionality, in order to avoid normative vacuums, and (iii) intermediate thesis, which conditions that the reviviscence of norms be expressly declared in the motivating or operative part of the sentence of constitutionality, under arguments that guarantee the constitutional supremacy and the prevalence of law. This article proposes the consolidation of the intermediate thesis, after confronting the convenience with the other theses, since it allows guaranteeing an adequate weighting between legal certainty and the prevalence of fundamental rights, avoiding that the validity of the law be subject to the arbitration of those who must apply or interpret it.