Effectiveness as threat to constitutional systems

There are facts which are understood thanks to their application since “application remains a criterion of understanding.” However, constitutional systems are not universal. This is why systems are considered in their plurality and not in their unity. It is no coincidence that the new emerging legal order can hardly be understood according to ordinary sources of law. Think of the contrast in the twentieth century between “supra-statutory law” [übergesetzliches Recht] and “statutory lawlessness” [Gesetzliches Unrecht], to mention the title of a famous paper by Radbruch. Or look at the rising of the ius cogens, as source of obligations imposed on States, proclaimed as human rights and now constitutionalized in the form of fundamental rights, starting, above all, from the Universal Declaration of Human Rights of 1948. Thus, the effectiveness of universal justice and its maturation process are at risk. Political and cultural incoherences between peoples forcefully threaten the universal effectiveness of the ius cogens. Such inconsistencies cannot be overlooked. Hence, the wide-reaching processes of constitutionalizing human rights and recognizing the supra-statutory law, particularly among democratic systems, are not adequate to guarantee universal constitutional justice.