Formal Constitution and Material Constitution after the presidential vacancy

Formal Constitution and Material Constitution in Peru after the presidential vacancy

The meaning of Legal Families or Traditions

Por Antonio Peña Jumpa*

December 22, 2022.- The protests and deaths following the self-coup and the presidential vacancy of 7 December 2022 in Peru lead to a debate on the content of its Political Constitution in its formal and material sense. How can the protests that occurred following the presidential vacancy be explained and resolved in this formal and material sense of the Political Constitution of Peru?

Before answering the question, let us explain what we mean by Formal Political Constitution and Material Political Constitution. In both, in turn, we find the concept of Family or Legal Tradition.

Formal Political Constitution

A Political Constitution is formal when it is written in a normative text, in jurisprudence, or has a religious or political meaning as its source or is based on agreements or on the customs of a people or a country, in accordance with the legal family or tradition that guides it. In continental Europe the Formal Political Constitution is written in a normative text because it is guided by the legal family or tradition of civil law (of Roman origin) which establishes a culture of written legal rules in anticipation of the acts of individuals (for legal certainty). In England and countries that are guided by the common law legal tradition, the Formal Political Constitution is found in the body of decisions that judges have made in the history of the country and that guide people's actions (also for legal certainty). In religious or political states, or states with a native population, the Formal Political Constitution is to be found in the religious or political ideology, or in the agreements or customs that guide the acts of the individuals of a people, following their family or legal tradition.

Material Political Constitution

The Political Constitution of a country is, on the other hand, material or real when the normative text, the jurisprudence or the religious or political sense, or the agreements or the custom that sustains the Formal Political Constitution is overwhelmed by social actions that the people of that country, or an important part of it, consider different and demand its transformation. How and why do the social actors of a people or country consider their Formal Constitution different? This is where it is difficult to identify an answer. However, the same legal family or tradition teaches us to understand when we are in this situation.

Within the family or legal tradition of civil law, that of European countries, the Material or Real Political Constitution appears when there is social dissatisfaction and protest. For example, the transit restrictions due to the COVID-19 pandemic was considered by European rulers to be a sanitary measure permitted under the Formal Constitution and which could be prolonged over a long period of time. However, this was not accepted by the population, which expressed its dissatisfaction and protests, resulting in its change after a few months (3 or 4 months in Belgium and Germany).

The people, through their MATERIAL OR REAL CONSTITUTION told the rulers that their measure was not constitutional and that they should change their interpretation of the Formal Constitution.

Within the common law family or legal tradition, that of the Anglo-Saxon countries, the Material or Real Political Constitution appears in a similar form to that of the civil law family or legal 

tradition, with the only difference that it ends in a legal action. Faced with the dissatisfaction of the population, a legal action is brought, which can be collective, and on which the supreme courts will finally decide. This decision becomes a precedent that modifies the Formal Political Constitution.

In religious or political states, or states with a native population, on the contrary, the Material or Real Political Constitution is different. The Material Political Constitution appears when the practice of the religious or political sense that constitutes the source of the Formal Constitution of the religious or political state is interpreted in other way and changed, or necessity forces a change in the arrangements or in the customary practice recognized in the Formal Constitution of the native people's state.

What is happening in Peru?

Peru, in accordance with its cultural diversity, has not one but several legal families or traditions. In the reality of the country, there is a dominant legal family or tradition, which is imposed from metropolitan Lima and the big cities, and there are other legal families or traditions of the native population in the outskirts of the cities and in the regions of the Andes and the Amazon.

there is a family or dominant legal tradition, which is imposed from metropolitan Lima and the big cities

As in most Latin American countries, the dominant legal family or tradition in Peru is the civil law legal family or tradition (from Continental Europe). This legal family or tradition arrived with Spanish colonialism and was consolidated with Peru's independence and republic. However, Peru originally had other legal families or traditions: localised in the native population, guided by a diversity of ideologies based on the nature of the geographical regions of the Coast, the Andes and the Amazon, and structured on the basis of agreements or customs, very different from what the Spaniards understood and regulated. Those native or original legal families or traditions persist in practice, in their localities or with their migrants, constituting a legal pluralism in the country.

Those native or original legal families or traditions persist in practice, in their localities or with their migrants, constituting a legal pluralism in the country.

In this context of domination, the Formal Political Constitution of Peru follows the legal family or tradition of civil law, and only partially includes the native or original legal families or traditions in its norms. Only 4 or 5 norms of the Formal Political Constitution of Peru recognize this diversity of legal traditions or families.

This normative reality, in turn, makes it difficult to know when the Material Political Constitution of Peru manifests itself. For example, when the rights of a peasant or native community, which belong to the family or legal tradition of the original population, are affected, the reaction comes from the country's Material or Real Political Constitution, without the formal authorities being aware of it. Something similar, we believe, is what has happened after the presidential vacancy.

The constitutional president tried to dissolve the Congress without respecting the Formal Political Constitution, and the Congress of the Republic vacated it under the same Formal Political Constitution. But the Material or Real Constitution was different. The people were divided: one side did not want the president and the other side did not want the Congress. The first had the support of the Forces of Order, who normally follow the Formal Constitution, but the others had the support of that population that identifies with the diversity of legal families or traditions and manifests in majority what is the Material or Real Constitution of the country.

What to do?

In this complexity of the formal and material meaning of the Political Constitution of Peru, it is first necessary to understand the legal families or traditions present in the country.  Second, a dialogue between legal families and traditions is indispensable, understanding the country's Material or Real Political Constitution. Thirdly, it is necessary to take early legal action, interpreting the Formal Constitution based on the Material or Real Constitution, before new confrontations and deaths occur.

(written in Lima, December 29-30, 2022).

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*Antonio Peña Jumpa es professor at the Pontificia Universidad Católica del Perú and lecturer at the Universidad Nacional Mayor de San Marcos. Lawyer, master’s in social sciences and PhD in Laws.

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