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The presumption of constitutionality in Brazil

Grant number: 17/07907-2
Support type:Scholarships in Brazil - Master
Effective date (Start): August 01, 2017
Effective date (End): October 31, 2018
Field of knowledge:Applied Social Sciences - Law - Public Law
Principal researcher:José Levi Mello do Amaral Júnior
Grantee:Nicola Tommasini
Home Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The present research project proposes a systematic study of the presumption of constitutionality, understood as a technique of judicial self-restraint. Following an IC research project financed by the Fundação de Amparo à Pesquisa do Estado de São Paulo (FAPESP), it intends to study this mechanism - understood initially as a instrument of restraint - in such a way as to comprehend its role in the Brazilian constitutional system. In this way, it intends to study: (i) the origin of the mechanism and how it came to be accepted in Brazil, i.e., if the differences between systems were observed; (ii) a definition - surprisingly inexistent in Brazilian Constitutional doctrine - of the technique, considering Constitutional Brazilian law and the technical meaning of "presumption" and "constitutionality"; (iii) the effects of the presumption of constitutionality, exploring consequences that have been suggested by doctrine but have never been explored; (iv) the legal basis for the presumption of constitutionality from the Brazilian Constitutional and judicial practice. (AU)

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