Constitutional imagination: human rights, culture and development starting from Luhmann and Unger

Author(s)

Lucas Fucci Amato

• Document type: Doctoral Thesis
• Press: São Paulo.
• Institution: Universidade de São Paulo (USP). Faculdade de Direito (FD/SBD)
• Defense date: 2017-04-27

Examining board members

Celso Fernandes Campilongo; Samuel Rodrigues Barbosa; Orlando Villas Bôas Filho; Joaquim de Arruda Falcão Neto; Willis Santiago Guerra Filho

• Advisor: Celso Fernandes Campilongo

Abstract

This doctoral dissertation presents an exercise of legal analysis that conceives constitutional rights as institutions and explores their alternative set-ups. Opposing the reduction of rights to faculties of a person, legal rules or moral principles, it places constitutional rights as structures that bond the \"internal environments\" or \"public spheres\" of the legal and political systems (legal personality and public opinion). It asks how these rights work in relation to the incongruities of the functionally differentiated world society, which are expressed in moral semantics that emerge as \"self-consciousnesses\" of this society: the discourses of human rights, of culture, of democracy and of development. It builds a constructivist theoretical foundation starting mainly from Niklas Luhmann\'s and Roberto Mangabeira Unger\'s legal and sociological works. It describes the morphology of the legal, political and economic systems, scanning the structural and semantic forms of the cooperation between law and politics institutionalized by the constitution. It revises the liberal constitutionalism in its ideals and forms of organization, criticizes the alternatives sketched during the twentieth century and presents a redefined normative guideline as a basis for a new model of rights (\"DIPA\"). From a super-liberal optics and under the light of democratic experimentalism, it envisages four types of rights: destabilization rights, immunity rights, participation rights and autonomy rights. It explores, with the tools of comparative constitutional law and following the designed theoretical construct, this emerging model of public rights - focusing not only on constitutional rights in national legal orders, but also on the implications to human rights in international law and in other types of legal order. (AU)

• FAPESP's process: 14/02114-6 - Constitutional imagination: human rights, culture and development in Luhmann and Unger
• Grantee: Lucas Fucci Amato
• Support Opportunities: Scholarships in Brazil - Doctorate (Direct)