Full text
| |
| Author(s): |
Telma Rocha Lisowski
Total Authors: 1
|
| Document type: | Master's Dissertation |
| Press: | São Paulo. |
| Institution: | Universidade de São Paulo (USP). Faculdade de Direito (FD/SBD) |
| Defense date: | 2013-07-26 |
| Examining board members: |
José Levi Mello do Amaral Júnior;
Luis Fernando Barzotto;
Alexandre de Moraes
|
| Advisor: | José Levi Mello do Amaral Júnior |
| Abstract | |
The foundation or refoundation of a political community doesnt signify an absolute beginning or transformation, for there is some load of continuity in every change, even when it is considered to be revolutionary. From that hypothesis, this work will analyze the concept of originary constituent power, by trying to show some oversights and insufficiencies of its classical theory. The major problem to be mentioned is that the theory of the constituent power, when understood as a theory of rupture, can lead to confusion between power and authority and between power and law, which favors a radical formulation of democracy. As an alternative, another point of view from the constituent power will be introduced, one that doesnt put it as an absolute creator of the juridical and political order, but as a creature of a pre-existent order, bringing therefore limits to its proceeding. On the one hand, these limits come from the assumption that we are dealing with the constituent power of popular titularity, which means that the making of the constitution itself will have to obey some democratic principles; on the other hand, there is a series of limits that derive from the institutions developed in a determined time and place, as from the organizational level and previous conceptions from the people that want to build a body politics. The ideas exposed in the firsts chapters will be exemplified through the study of a case, that of the Brazilian National Constituent Assembly of 1987/1988. At this point, the work will analyze some elements that demonstrate the great level of institutional continuity between the new and the old constitutional orders, with special attention to the maintenance of the federal form of state and the presidential system. On the other side, it will be studied which elements define de rupture between the two orders, discussing the essential alteration of the political regime. In the end, we expect to present an alternative notion of the originary constituent power in comparison with that of derived constituent power, avoiding its characterization as an unlimited and unconditional body, as the classical theory intends. (AU) | |
| FAPESP's process: | 11/01076-5 - Democracy, power and nomos: a new look upon the institutional model of the Brazilian Constitution, from Carl Schmitt conceptual apparatus |
| Grantee: | Telma Rocha Lisowski |
| Support Opportunities: | Scholarships in Brazil - Master |