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| Author(s): |
Mariana Augusta dos Santos Zago
Total Authors: 1
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| Document type: | Doctoral Thesis |
| Press: | São Paulo. |
| Institution: | Universidade de São Paulo (USP). Faculdade de Direito (FD/SBD) |
| Defense date: | 2016-07-01 |
| Examining board members: |
Fernando Dias Menezes de Almeida;
Daniel Wunder Hachem;
Nina Beatriz Stocco Ranieri;
Luís Virgílio Afonso da Silva;
Roberto Baptista Dias da Silva
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| Advisor: | Fernando Dias Menezes de Almeida |
| Abstract | |
The federation is a form of state characterized in general terms by the division of political power between one central government, the federal government, and regional governments, the member states. The Law, however, does not comprise all the aspects of this eminently political phenomenon. On the contrary, in this area of knowledge the focus consists of the constitutional division of competences (powers), which is considered by some authors the main question of federalism. From this perspective, this work proposes a comparative study of how the Brazilian Federal Constitution of 1988 and the German Basic Law of 1949 allocate legislative and executive competences between the federal and regional governments. This research, in turn, was structured in order to answer two main questions: first, what are the real similarities and differences between the Brazilian and the German legal systems regarding to this aspect? Secondly, are there solutions conceived by the German jurisprudence and case-law for problems concerning the constitutional division of powers that could be transplanted to Brazilian legal system in order to solve domestic disputes on this matter? Before addressing these issues, however, it was important to answer some minor, though indispensable questions from a theoretical and methodological point of view. Thus, the first chapter of the dissertation was devoted to the explanation of the theoretical foundations of the research, which encompasses from notions of federalism and federation, theoretical appointments about centralization and decentralization in a federal state, up to a concept of federal competence and its most significant classifications with regard to this research. In the second chapter, both Brazilian and German federations were contextualized according to some preselected angles, fulfilling this important step of comparative analysis. In the third chapter both theoretical and methodological aspects were confronted. After some enlightenments about the Brazilian and German systems of division of legislative and executive powers in the fourth and fifth chapters, the first major question of this research could be answered in the sixth chapter from the perspective of the general rules of division of powers provided in the Brazilian Federal Constitution of 1988 and the German Basic Law of 1949, how these two constitutions distribute legislative competences, and the discipline theses constitutions provide for the division of executive competences. Finally, in the seventh chapter the German debate on the subsumption of a statute under the rule of competence, on the Bundestreue principle and on some municipal questions is examined from its applicability to Brazilian disputes over the constitution distribution of legislative and executive powers. (AU) | |
| FAPESP's process: | 13/03885-3 - Federalism in Brazil and Germany: comparative study of the constitutional allocation of legislative and administrative competences |
| Grantee: | Mariana Augusta dos Santos Zago |
| Support Opportunities: | Scholarships in Brazil - Doctorate (Direct) |