The Relation Between Constitution and Private Law: Their Consequences over the Interpretation and Application of the Argentinian Legal System

Abstract

Ever since the Argentinian constitutional reform of 1994 a new system of legal sources has been configured. The idea of constitutional supremacy – extracted from article 31 of the Argentinian Constitution – and especially the International Treaties of constitutional status (article 75, 22 of the Argentinian Constitution) configure the fundamental base of a system of legal sources in the Argentinian legal system that has undoubtedly changed the legal system. One is thus before the phenomenon of the constitutionalization of private law, which is why ordinary legislation must begin from this system so as to interpret and apply law. As a consequence, cases under private law must be solved in accordance with laws that regulate the matter and that are understood as applicable once they are interpreted in the light of the National Constitution and the treaties which have been signed by Argentina. One of the main effects of such a constitutionalization of everyday law is precisely that, even if there is no legal disposition that regulates a right which is recognized by the Constitution, the right is operative and the person that demands judicial protection can ask for its application. Thus, the interpretation and application of the Argentinian private law must not disobey the following directive: to adequate ordinary law to the Constituon and the human rights treaties which have been incorporated with constitutional hierachy by the 1994 reform.