Modern society is increasingly regulated by the state forms as well as contracts. Private relationships are paramount. We highlight the role of DIP - called "Soft Law" - which consists mainly of flexible agreements and negotiations.
However, despite the emphasis on forms of regulation non-state, the state still remains a source of law. He ultimately, is who interprets the contract and remains the last word: the element of interpretation. The internal order rests with the state courts. Private relationships are always guided by constitutional norms.
The law has two main objects: the rule of law and state, this being the source of that. Paradoxically, despite its close connection with meaning and origin with the state law has traditionally difficult to define it.
The General Theory of Law has a number of theories to explain the rule of law. There may be no consensus, but the standard may be effective because it is considered that it represents the public interest.
In relation to the state, law can not reach it, the very concept of state condenses a vast array of social forces, disrupting classes and interests. The state machine has an internal logic that the law can not translate in full, due to its complexity bewildered. The Right
he adopted two policies from the state:
1. Fragmenta and disciplined study of the state, to avoid having to deal with its overwhelming totality. As a consequence we have the idea dustim State abstract, fragmented, without its entirety. (Ie constitutional perspectives, social control, commercial, etc.).
2. In legal rhetoric, there are a number of categories that keep think about what is the state. (Ie instead of talking in 'state', a term of complicated concept, we speak of 'public', as if the change became the term structure of interest in something above, with an image of neutrality.)
Although the law preventing the state, he ends up having to study it, if only minimally.
The experiences we have to study the state are quite localized, despite this, they beamed themselves. This study appeared in Germany in the late nineteenth century, with a new subject called General Theory of State (TGE). We will study the constitutional law through the German and American traditions, highlighting, respectively, for the constitutions of 1919 and 1787.
The greatness of German constitutional law arises in the nineteenth century with the creation of the German State. Their tradition, therefore, until 1919, is the issue of state building. Germany was a civilization late in the construction of the state in relation to others, with the exception of Italy. The idea of a State in Germany was consolidated in 1870-71. It is natural that TGE was created to explain this state that emerges. However, the reason for the TGE is not to explain or challenge the state, but to justify it.
Moreover, the American tradition has always been linked to the Constitution and its amendments.
TGE translates very visãao scientific discourse of the nineteenth century, the victory of science to transform the world and be unquestionably established general laws to explain the world. It is predominantly scientific positivism, objectivism, methodological rigor. The law comes into this picture, mostly German. That's what happens the most absolute form of legal positivism, and it is based TGE. It is therefore the intention of under general laws to explain the state.
Thus, TGE tries to study the state of the abstract and neutral, in a historical context. Moreover, the vision of the state that has AValor is, the state does not interpret values (it is, however, essentially a political entity). Therefore, the State should only be studied by legal Its characteristics (AValor). The State's territory, sovereignty, legal characteristics.
Speech 'scientific' law:
- Nineteenth Century: Positivism Legal. General Laws abstraction + + + ahistorical neutrality AValor + + = explains the essentiality of the legal norm and legal state.
- End of the Twentieth Century: rhetoric (arguments) + principles (values) = standard legal
There is no truth or certainty. No longer an absolute view of the law.
The state can not be explained only through a legal view, it has political elements. TGE has failed for this.
1. 1870/71 - Constitution of 1919 "Weimar". Highlight of TGE in Germany, and influence on other societies. There are two courses for law students: TGE and Constitutional Law (as the rules institutionalize the rule).
- Authors: Paul Laband, Georg Jellinek
A) Paul Laband - one of the founders of TGE, embodies the main features of TGE (justifies the State asserts that because of the very strength of the state, he is justified independently of any theory. Its strength that gives you personality.
B) Georg Jellinek - German contributed to the TGE and what would be the German Constitutional Law. Jellinek lives a historical context Laband different from the German State is already established and helped build the industrial capitalism of the late nineteenth century.
The state acted as an element of coordination in a fragmented society, containing the social pressures. Primrias was one of the attempts of state welfare: it is called the Bismarckian state. The vision of the state only legal and AValor could no longer explain the German state, with great functions and interventionist policies (and economically). Jellinek is the author of the crisis of German legal positivism and the transition of thought. This transition is not complete.
Proposals of Jellinek:
a. recognizes that, beyond the legal concept of state, this is a sociological concept. However, the lawyer only interested in the legal concept.
b. Paradoxically, Jellinek introduces an evaluative aspect in the concept of state: a category of purpose.
First, he renews the legal positivism, on the other hand, speeds up your order, because it shows how far this line of thought is the reality.
is in constitutional law that leaves his definitive mark Jellinek for the future. Their contributions:
a. Germany, this period, of the Constitution of 1871, but had no constitutional tradition. Due to their low effectiveness, Jellinek brings the issue of constitutional change. Both the German theory as the theory studied the recent American theory of constitutional change (the power of amendment or revision). What is typically debate Jellinek of German origin: see that, in short, every constitution must be changed. The German theory provides the constitutional mutation itself - a "mutation informal" (the standard remains the same, but their interpretation changes with the social forces) - and this is not confused with the power to review (Formal change). There, in Brazil, the distinction between the two mutations.
b. The twentieth century is a century full of discussions about fundamental rights. Jellinek contributes to this debate in Germany through a historical analysis. He fights hard the idea that fundamental rights are of French origin, and France had been consecrated as the 'land of Human Rights', since there had been made DDHC.
Jellinek opposes this view, arguing that the origin of fundamental rights is German, as they have arisen because of the Protestant Reformation. There is an evolution path human rights, and the Lutheran movement its starting point (freedom of expression, freedom to individual interpretation of the Bible). These rights could only be born because there was a 'freedom' a right 'liberation' of man. To Jellinek, fundamental rights constitute what he calls a theory of 'status'.
c. Theory 'status' - the whole nineteenth century was very logical and rational in the direction of the natural rights that are subjective in nature. For him, that nature is complex, not only merely subjective, but basically the objective (not dependent on the will of the state, not people).
2. The
The
(cont.)
critical Concept: State is an entity formed by a historical process (mainly from the sixteenth century), from the territory endowed with sovereignty, whose articulation between citizenship power and is effective through democracy .
Firstly, we are living a historic moment full of problems of security risk and ethical and religious fundamentalism. This opens the door to a society with authoritarian forms of control.
However, even in a society with security issues, the only way out is democracy: knowledge and discussion to find solutions and antidotes against risk.
Democracy is basically political participation, but this concept is not enough. Each historical moment has its own democratic process.
I. In the fifth century BC, for example, had a direct democracy Athenian Agora and centered vaseada bi Institute of participation.
II. later seventeenth century until the 70s, we have representative democracy, the mechanism is indirect. Your institution is fundamental to the Parliament, in which the voice of the represented is heard.
III. From 70 years, guiding the direction democratic social movements, electronic media are also important determinants and innovations, and Parlmento remains one of the centers of political discussion. There is so much participation as representation in political systems.
IV. After 11/09/2001, live in a risk society. Limitations on exercise political participation. The Executive takes the place of Parliament as a centralized power structure.
The idea of non-intervention of the state was established by liberalism. It is clear that the German constitution of 1818 was already pointing to the new times; The new concept has several meanings:
1. Gendarme State (State does not intervene unless there is conflict).
2. State Police (state and duty to supervise).
3. rule of law (No doubt this is an important sense, was the century liberalism XIX who got the state were limited by law. First, the law establishing the State. Later, it appears that it delimits the area of state action.)
The liberal idea of limiting state power was first applied in England in the late eighteenth century ("Rule of Law"). The State was not only obedient to the law, the Parliament did and thought.
However, the expression 'rule of law' was created in Germany to designate the control of government.
The French meaning is related to the protection of political freedoms. Although the rule of law, not liberal predominates over the term remains in legal lexical field, predominantly on the liberal rights of defense.
The bureaucratic-rational state of Weber is the rule of law today .. Over the past twenty years, there was a round of liberalism - neo-liberalism - which occurred primarily with Reagan and Thatcher.
The Greek city was a democratic face to face, of direct political participation. However, this does not mean that everyone is involved, since democracy was restricted to citizens, only a few had access to citizenship. The Greek world privileged the public sphere, the private world did not matter. To be a citizen, had to participate in the Agora. The public was not the state, but the Assembly.
Representative democracy begins to take hold in the seventeenth century and goes until the 70. The mechanism of representative democracy is indirect. Public space is no longer the Agora, but the Parliament. Participation takes place in two ways: narrowly or by proxy.
This democracy was built from three revolutions:
A) English Revolution (1640 - 1658)
With the dictatorship of Cromwell and the Glorious Revolution (1688-1689), the power of the sovereign is to have limits . The revolution brings as a contribution to the victory of Parliament and the advent of the rule of law.
B) American Revolution
The U.S. Constitution provides an important institutional contribution to representative democracy. Moreover, constitutionalism is created. There are innovations in the separation of powers, the whole state will be subject to constitutional principles. Neste momento, consagra-se a supremacia da Constituição revolucionária -- cujo objetivo é, afinal, limitar o poder -- com seu artigo 6o. The judiciary takes care of the constitutional control in the U.S., any judge may rule on that. (This, of course, does not give the judiciary supremacy over all others.)
C) French Revolution
This brought a contribution to democracy predominantly politics: the notion of freedom, equality and fraternity. In a world legal and constitutional post-45, the Constitutionalists created the expression "constitutional state" this is always evolving and incorporates the triad French ideal. It is the opinion of some who now seek to reach a new triad: diversity, solidarity and security.
70 Years: search for new paths. Creation of an "electronic agora." Never discussed both democracy in the last thirty years.
I. Direct Democracy
not have "mechanisms"; is face-to-face democracy of the Greek polis. Currently, there are some provinces of Switzerland that are so organized. There is much discussion this idea of deliberative democracy, for example, proposals for public hearings on environmental issues.
(Note: Law 9.868/99 - the seventh art., § 2. - Supreme Court may hear the opinions of authorities, it is a form of deliberative democracy with the participation of amicus curiae.)
II. Semi-direct democracy
consists of the adoption of mechanisms that are close to popular sovereignty. In Brazil, these mechanisms are contemplated in Art. 14 of the Constitution. The plebiscite is the Brazilian tradition, however, the legislation governing referendums and plebiscites is shy, very connected to the municipality, not enhances the energies that might result from the use of such mechanisms.
plebiscite, referendum to decide on a theme, give any consent.
Referendum: popular referendum to approve a legislative act. Both in
plebiscite and the referendum is a fear / resistance, which is the possibility of manipulation.
constitutionally disciplined Another mechanism (art. 61, § 2.) Is the popular legislative initiative. (Note: article 59 and following - regulates the legislative process.) You can participate in the legislative process through a petition that has the signature of 1% of the population from at least five states).
There is also the example of American recall - the repeal of mandates or legal representative of positions - such as occurred in 2003 with the governor of California.
Revocation is indeed the mechanism closer to the popular sovereignty, is an imperative mandate through which a standard is withdrawn on a petition.
There was a breakthrough - followed by a setback - when it created an institution unique in Brazil: participatory budgeting (determination of application of budget allocations).
Normatively, there is popular participation in municipal government, governed by the organic laws of the municipality.
III. Representative Democracy (indirect) , based on national sovereignty:
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Representative
↑ ↑
parties
Suffrage
↑ ↓
Represented
Electoral Systems
Features:
- Complexity of operation
- Works represented a bipolarity -
representative - Furthering the notion of fiction (the law is full of legal fictions, such as contract, legal personality, and so on. On the one hand, this form of democracy builds a legal fiction of popular will - the national will, most - and this is an exaggeration. The "Popular will" is constantly manipulated (as in elections, for example, has to choose one candidate to another not win, etc.)..
Institutes of representative democracy:
1. suffrage election
Its legal nature is peculiar, as well as nationality. On the one hand, suffrage is a subjective right ( facultas agendi ), but is also a public law. However, due to the importance of nationality and the right of suffrage, the public assumes this posture of protection, security.
rating right of suffrage: restricted or universal.
restricted suffrage is one in which there is the imposition of insurmountable one criterion (race, religion, sex, etc.).. Since universal suffrage has amplitude, an inclusive, unless restrictions such as voter age, mastering the English language, and so on.
History: The idea of universal suffrage is very much linked to the French Revolution, though it has not effected this right. There was a great struggle in nineteenth century England by universal suffrage, against the attempt to reform an electoral vote that allowed just over 40 years. Suffrage universal is actually just opened in France in the late nineteenth century.
suffrage in Brazil
There is in Brazil throughout the nineteenth century the suffrage, restricted. During the 1889 to 1930, the CF of 1891 gives the idea of universal suffrage (it was not therefore an achievement, but an assignment. Contradictorily, that universal suffrage is limited (they could not vote illiterate, poor, etc.. ), and its own jurisprudence of the Supreme Court did not extend voting rights to women.
This period ends with the revolution of 1930, which came to inaugurate the 'electoral truth' through the code election of 1932. There are still several constraints to universal suffrage, but there is a major transformation of the Brazilian electoral process with the formation of Elections and the granting of voting rights for women.
50 Years: the revolution is only adopted for the ballot vote. Already in the 60s, the great banner of basic reforms Jango is the vote of the illiterate, the possibility that this was only made after the constitutional 88.
Today, voting is voluntary between 16 and 18.
The electronic ballot box is another part of guaranteeing universal suffrage; it, Brazil is the world example.
The great revolution election in Brazil in the twentieth century (from the mechanisms of power - "electoral fraud", vote for someone on your goals and get other results, thus preventing the development to a more advanced level) had worldwide repercussions .
2.
Political parties are political groupings based on ideological programs that focus on the achievement of democratic power, linked to the idea of taking power.
The party has origin in the society, rather than depicting it in its entirety. Despite this, he may win power to conquer others.
Legal nature Party:
1 - Before CF/88, the parties were seen as entities of public law. The State then had some power to command.
2 - The system today is the gift of art. 17, § 2. This article is consistent with the system adopted by the CF (see chapeau of art. 17): total freedom to create political parties. Second paragraph, the parties would be the nature of private law. However, the state regulates them in a way.
3 - German system, where parties have a dual nature: they are private law and public law. Brazil did not escape much of this system since its CF will indicate ways to parties (for example, follow the democratic, national character). In Germany, the restriction to them is even greater. They have to have a domestic democratic order, to prevent resurgence of neo-Nazism and partigos extremists, authoritarian in general. There is also the criterion for voting barrier (which will be adopted in Brazil from 2006): The party must have at least 5% of the electorate to continue to exist (measure taken to prevent party fragmentation exacerbated).
history of parties
The idea of party is of English origin. It is the parliamentary system that makes room for this division. The parliamentarism was born from a practical policy, for which the party organization has strategic importance (unlike the presidential system, which was created from a theoretical model). However, it is only in the eighteenth century that will consider the idea as such parties (Whigs Thories x).
There in the nineteenth century the formation of workers' parties, like the English Labour Party, reflecting the new reality of social classes increasingly aware of themselves.
parties live a deep political crisis, from 70 years in relation to social movements. These are supra-class character and not aim to take power. This makes it difficult for them to have an effective party organization, with the exception of the environmental movement, whose ideals have been institutionalized.
history of parties in Brazil
first. period, the nineteenth century : The Brazilian system was formally bipartisan, but the parties had no authenticity;
second. period 1889-1930 : First year of the Republic. There are attempts to form parties of national characteristics and these, however, are in fact resulting from the so-called 'Pact of Governors' (Campos Salles). The party system has regional parties within the Colonels (exchange of favors between local, or municipal authority - the Colonel - and governors, supporting these so the President. There in 1922 the founding of the first party with an ideological, the Communist Party of Brazil. In the late '20s, the Republican Party creates a schism, the Agrarian Party Paulista.
third. period, 30 years : no marked a party model (may be national in character, regional, etc.). and the strong influence of extremist political movements (eg IBA, ALN). The troubled political context will serve to justify the coup 1937.
fourth. period, New State : There were no political parties. The bureaucracy was entirely state.
fifth. period, 1945-1965 (AI-2) : First step with actual presence of a genuine party system, is the "golden period of democracy." Parties are required to have a national character. It is difficult then to depart from the custom of the State to control the party system, this feature continued until the CF/88. It is worth mentioning the election of 1958, with the first real party. Then in the 1962 election opened the way for the 1964 coup, however, it it not there is more chance of an alliance between the PTC and the PSD. The regime of 1946 - well, not exactly a serious collapse - is in crisis because the parties come to represent the dominant interests. 64 military coup. 1965, last direct election for governor. In exchange for possession of governors, is edited in the Unconstitutional Act. 2.
sixth. period 1965-late 70 : bipartisanship, MDB and Arena. Election law case. Election of 74, soundly defeated the military regime. Period ends with two aspects: the emergence of a workers' party (PT 1981), and political amnesty. It is important to emphasize that the Brazilian transition election was, with a gradual surrender, "slow and safe" power.
seventh. period, the 80-day : party system, mainly originating from the fragmentation of the MDB. The Constituent Congress (not assembly) composed the new CF; she did nothing about partisan or electoral reforms. There is now deep partisan crisis, because there is more stability between the parties fiercely trying to measure its power and influence. (* 1997, legalized up for reelection.)
Classification of political parties
Classification of political parties does not matter anymore for Political Science. However, the law keeps it.
Maurice Duverger (French constitutionalist) wrote about the parties, classifying them according to the number: a single party, partisanship, political pluralism or multiparty system.
multiparty (Brazil): diversity of ideas, quality. Always been in this country with multiparty presidential regime. There is a certain schizophrenia in the system: the President can be elected without a majority of Congress.
