The non-application of unconstitutional laws by the Public Administration

Castillo Córdova L.F. · Revista de Investigacoes Constitucionais (2026) · DOI: 10.5380/rinc.v13i1.100024

Resumen

In legal systems where constitutional review of laws is not vested in the Public Administration, the question arises as to whether it is obligated to apply unconstitutional laws. The answer is constructed by identifying the essence of constitutional review and then identifying when we are actually faced with the exercise of such review. This article provides reasons to affirm that the formulation of a judgment of constitutional validity constitutes the essence of constitutional review. This judgment represents a legal rule whose factual assumption is the legal decision subject to review, and whose legal consequence is the declaration that such decision conforms to or deviates from the constitutional norms that have served as the parameter for review. When constitutional review is carried out by the Constitutional Court, a legal rule of constitutional value is produced that concretizes an open norm of the Constitution and enjoys the same binding force. This means that it must also be applied by administrative courts even when this results in the non-application of the law containing the same or substantially equal legal mandate.

Instituciones: Universidad de Piura