Exposición y críticas al concepto kelseniano de validez en tiempos del Estado constitucional de derecho

This article is a reflection about the concept of legal validity as was formulated in the work of Hans Kelsen. Its aim is to show how, starting from this enunciation of legal validity, several subsequent authors began to shed light on the strengths, contradictions, and weaknesses of this idea of validity outlined in the Pure Theory of Law. Through a conceptual and hermeneutical analysis of Kelsen’s work, with particular emphasis on his hierarchical clue of the legal order, it is argued that the concept of legal validity must take into account the emergence of fundamental rights in post-World War II constitutionalism; otherwise, the positivist theory of law could prove incomplete in explaining the idea of legal validity in the constitutional rule of law. The article aims to show that the Viennese jurist’s initial intuition on the validity of law opened the way to seeking a concept of legal validity that accounts for this notion in the way that constitutions are formulated, which establish the primacy of fundamental rights, the subordination of legislation to them, and their jurisdictional guarantee.