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The democratic foundation of law: a critical and normative perspective on legal theory, constitutional interpretation and institutional design in contemporary democracies

Grant number: 14/09810-8
Support type:Scholarships in Brazil - Post-Doctorate
Effective date (Start): March 01, 2015
Effective date (End): February 29, 2016
Field of knowledge:Applied Social Sciences - Law - Theory of Law
Cooperation agreement: Coordination of Improvement of Higher Education Personnel (CAPES)
Principal researcher:Ronaldo Porto Macedo Junior
Grantee:Thomas da Rosa de Bustamante
Home Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

This post-doctoral research proposal concentrates its research efforts in the points of intersection between legal and political philosophy, with a view to provide the basis of a democratic theory of law that purports to be appropriate for the political and institutional reality of contemporary Brazil. By attempting to develop a 'democratic' theory of law, one gives up the metaphysical claim to elaborating a 'general theory of law', universally applicable, and focus on the problems of determining the validity, normativity and appropriate interpretation of the law in democratic societies. It aims, furthermore, to build a normative theory for fixing a proper interpretation of the principle of separation of powers and to assess in a critical way the institution of judicial review and the existing proposals to reform the political institutions in Brazil (in particular the proposals to reform the structure of the judiciary and the judicial review of legislation). The research comprises three levels of investigation: 1) Meta-theory of law (or methodology of jurisprudence), democracy and constitutionalism; 2) Institutional arrangements, democracy and judicial review; and 3) legal theory and constitutional interpretation. These three levels refer to the problems of the relations between political philosophy and legal theory, of establishing normative directives for enhancing political and legal institutions, and of establishing a theory of adjudication and legal argumentation. (AU)

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