I. Concept of Constitution
The Constitution is a normative document, centered in the fundamental rights, which is structured organic values, aiming to discipline society and state. Your summary is great value for human dignity.
II. Constitutional Theory - three methodologies:
A. Traditional : mainly of French and Italian (in the nineteenth century). Was adopted in Brazil until the CF-88. Constitutional Law has characteristic deductive (general to specific). The method examines and ranks institutions.
B. American : inductive reasoning. The dynamic part of a U.S. constitutional case, or a Supreme Court decision, there are several standards : federalism, separation of powers, freedom of worship, etc.. They are all framed by the Constitution, its amendments and the constitutional precedents. Today, Brazil is essentially jurisprudential, despite the formal traditionalism; our institutional instability, however, does not allow our improvement.
C. German: the same method inductive time (out of concrete to explain the Constitution Constitutional Law, which can also be studied as science) and deductive. From the '20s, it creates the Constitutional Theory, which is a study of a specific constitution, establishing its role and giving meaning to the Basic Law. We can not forget that even in Germany, the law tramples increasingly methodology. In Brazil, this study is not possible, because we do not have constitutional tradition, in addition, our Constitution is not unique. The
Brazil left the traditional model because of the strength of the CF-88. There have been attempts doctrinal German adoption of the methodology. However, the law tramples disciplinary issues. Also walked into a model monograph (special study institutes) can be said then that we produced a fourth model. This is based on the jurisprudence of the STF, the deductive character, having support in monographs (doctrinal and fragmented).
III. Legacy constitutional Constitutional Law has a complexity quite different from that of the TGE, as worries about studying the Constitution. His method is no longer the proper Constitutional Law, but the Constitutional Theory. Binding precedents will further strengthen the judicial method.
A. Families constitutional: for the understanding of constitutional law, not just the question of methodology.
1. English: constitutional stability (Bryce)
a. basis of constitutionalism (limiting power and guarantee of rights): Magna Carta (1815); Bill of Rights
b. concept of constitutional stability. In the late nineteenth century, the British constitutional studied the issue of constitutional permanence (although England did not have a written constitution). Bryce called constitutions regarding their stay. There is also a great contribution to English constitutional law as to which institution should retain the constitutional order (in this case, Parliament).
c. You can not understand the American Constitutional Theory without the English law. This goes through a major transformation, in 1998, Britain adopted an advanced Charter of human rights, in addition, Britain is experiencing the unprecedented experience of state reform (changing Constitution). (See Constitutional Reform )
2. French: Constituent Power
a. After a relative loss of importance in the late twentieth century (not to work with practical aspects), the idea of constituent power was resumed at the beginning of the century, through the revolutionary notion of constitutional block. This is present in art. 5. § 2. the French Constitution, and throughout the art. 1., 7 of the European Constitution.
b. The composition of the block of constitutionality is derived from the junction of the preamble of the French Constitution with the Declaration of Human Rights and the fundamental rights guaranteed by the 1946 Constitution. In
Brazil, unlike France, fundamental rights are not only expressed at a level supraconstitucional (principles and treaties).
3. Italian: harmonization between economic order and work
4. German: matrix, based on four important points: a.
importance of the principles and values
b. Importance of fundamental rights
c. Constitutional Jurisdiction
d. Effective Date of Constitution
=> V (P) + DF + JC + EC =
Constitution => European Constitutional Theory (due to European Community law and, today, the European Constitution itself.
a. Base:
i. Cultural Identity
ii. Constituent Power
iii. Citizenship
iv. Legal personality
v. New fundamental rights (eg bioethics , efficient public administration)
=> IC + PC + C + PJ + DF = CE
b. However, there are discordant voices in Europe entirely, believing that the constitutional traditions of each country in the bloc already suffice.
5. American Constitutional Theory: basis of all modern constitutionalism (civil rights, with legal guarantor of the Constitution, the role of federalism and presidentialism).
IV. History Constitution
A. Ancient Greece: from the Greek world, had some notion of the Constitution. The category politeia is not accepted, however, as a Constitution, only the political organization of the city-state. The policy would, at most, a material Constitution (principles, norms that guide society).
B. Medieval World: Some scholars argue that the Magna Carta of 1215 was the first Constitution, others that it is only a document of law. She anticipates some major institutions (eg the legality tax) but not has the feature of generality that characterizes the modern Constitution.
C. 1787 The Constitution of 1787 is the world's first constitution, because it speaks to a collective ( we, the people ). Another key feature is its superiority to the law.
V. Trajectory of the Constitution
A. Liberal (XVIII century - 1919)
1. Constitution as a limitation of state power, according to the principle of nonintervention (State gendarme). Separation of powers, due process.
2. Rights individual (property was the core of these).
3. Vision Classic of subjective rights (right to defense, civil liberties, etc.).. There is no systematic, they are not the core of the Constitution.
4. There insurance mechanisms of effectiveness. Constitution is more a "letter of intent (" constitutional romanticism "- fiction, non-concrete), merely declaratory.
5. Address: rhetorical.
Brazil had two liberal constitutions: the 1824 granted (who considered slaves as res) and CF 1881.
B. Social (1919 - 30 years)
1. State: intervention in the economic order to promote social rights.
2. Katalog fundamental rights. Protection of human dignity.
3. Social function of property.
4. is common in Latin America to mention the Mexican Constitution of 1917 as the first social. However, it is not true reception of the doctrine. In fact, the first was the Weimar Constitution (1919); however, her lack of a mechanism for effecting (Constitutional Court). This does not occur in the Austrian Constitution of 1920, elaborated by Kelsen.
5. Address: rhetorical.
Brazil CF 1934 and 1946 follow this model.
C. Social jurisprudence (1945 - late twentieth century)
1. State: social intervention. (State of Welfare: the growing process of intervention.)
2. No more constitutionalism itself, but neoconstitutionalism; Constitutional Theory is dominant.
3. Anthropocentric Constitutions: s principle fundamental rights have character and value. These rights are enhanced through the new installment rights. There is considerable debate about the social rights are fundamental or not, according to conservatives, not because it depended on the budget, according to other scholars, all fundamental rights have to be hired.
4. Principles and rules are constitutional, but principles have an interpretive character, in order to leverage other standards.
5. Breakthrough: effectiveness. It is unremovable the idea of fundamental jurisdiction jurisprudence, because the Constitution shall be implemented in judicial decisions. Thus, the power of judges is enormous; strengthening of the Constitution, its text is weakened by the force of decisions.
6. Address: translating.
D. Postgraduate Social jurisprudence, there are two possibilities:
1. Jurisprudential-international : building on the European Union (which serves as a network, a hierarchy of standards with different instances), there is a coexistence of the traditional state with a new entity without legal set. The state's role would be to encourage political, and not the intervention. There are new fundamental rights (social, ethics, diversity). The effectiveness still depends much of the judiciary, international jurisdiction. Address: each part of the system lies a possible speed.
2. security model: from 11 / 9, this model has been widely discussed by American doctrine. His concern is the maintenance of constitutional guarantees in a risk society. The state is interventionist, but the degree of intervention is discussed. The restriction of fundamental rights (eg the Patriot Act ). There is a contradiction regarding the effectiveness of the guidelines, because the Supreme Court continues to demand due process.
VI. Classification of the Constitution
A. The permanence: rigid, semi-flexible, flexible.
1. In the late nineteenth century, Bryce performs a classification as to the permanence of the Constitution. This can be hard (restricted have procedures for changing your text, such as the CF-88), semi-rigid (no change to the rigidity of certain parts, the other not - for example, the Charter of 1824) or flexible (such as the Charter albertina Italy).
2. In rigid constitutions, as well as formal mechanisms, we can emphasize the strengthening of so-called "entrenchment clauses", particularly after 1945 (art. 60 § 4. The Constitution).
3. This classification does not hold much nowadays due to the large change in the very concept of the Constitution, which has great importance to jurisprudence. It maintains the doctrine that the Basic Law should not be "rigid" because it has to be opened in the historical process (in the terminology of Hesse, the Constitution should be "open society").
4. The constitutional theory traditionally created two tools to adapt the Constitution:
a. Constituent Power:
i. Power original constituents (Sieyès): The nation elects representatives participating in the ANC and this makes the Constitution, which establishes the constitutional bodies and the legal structure. In particular, rigid constitutions are very much linked to the constituent power originating, as it points to the future permanence of his will; it to succeeding generations the legacy of this meeting (responsibility principle).
The original constituent power has two features: create a legal system and has full sovereignty (in fact it is in fact limited by both the international order and the rights that are being created). Therefore, it is this power that determines who is the guardian of constitutionality. (Art. 102/CF)
ii. derived constituent power: power granted by the original constitutional power to conduct the formal change of the Constitution. It has features several of the above (in relation to the dictates of the original power, its role is secondary and conditional, conditions which may refer to matter, time and circumstances of the possible constitutional mutation) and can take two forms: The
. review - more flexible procedure, changing the whole constitution. The Portuguese Basic Law, article 288, does the forecast change at any time through amendments, but with the imposition of a reform every seven years.
B. amendment - the Brazilian tradition is of constitutional amendments. However, until 1946, there was an accurate description of the term - since then the institute is called "the power of amendment." Art. 2. ADCT of speech review, stating that one should be made after the plebiscite of 1993.
iii. There is also due to the constitutional power, which occurs in the federal system, as foreseen in art. 25 of CF/88. The Federation states have constitutional power to organize, since they do not infringe their constitutional determinations, including those determining competence (art. 21 and 22 of the Constitution).
b. Constitutional Jurisdiction: A set of institutions and mechanisms through a specialist tribunal which aims to preserve the constitution and implement it through the realization of rights.
i. Two types of moment of constitutional jurisdiction:
A. North America: Judicial review - diffuse
1. There may be questioning about the constitutionality of the application of a rule in any instance of the judiciary.
B. Austria: European model - focused
1. Only in the constitutional courts can be said the questioning. In the post-1945 period, the tendency in some societies was the combination of the two models (such as Portugal, which has a constitutional court, but allows the debate in any instance).
Brazil Especially after CF/88, established itself a hybrid system, we do not have a constitutional court, but it is the STF in the central part concentrate system. In general, we adopt the model judicial review, any judge can rule by means of its own.
ii. The body of constitutional jurisdiction (simplified classification):
A. Judicial - judicial review and the European model
B. Political - England: it's a really political power to exercise constitutional jurisdiction (House of Lords).
Europe There is great doctrinal debate about the nature of European constitutional court, some say there is a political, as the constitutional court somehow not part of the judiciary, its composition would be politics. However, the processes and judgments of the European constitutional justice are guided by the principle of due process, the judge must be neutral ( self-restraint), according to objective criteria. The composition is as political as the U.S., therefore the system should be classified as judicial in nature.
iii. History constitutional jurisdiction
A. Source: England. Constitutional jurisdiction was then exerted by the House of Commons.
B. In the U.S. progress was made in favor of more contemporary view of constitutional jurisdiction ( "supreme law of the land" - art. VI of the U.S. Constitution ). However, the guardian of constitutionality established only after Marbury v.. (1803): The Supreme Court .
C. Regarding the European system, is with the Austrian Constitution of 1920, due to the influence of Kelsen, who develops a constitutional jurisdiction concentrated. Until then, Europe has always had a tradition linked to the constitutional legislative power. After 1945, there is definitely establishes the Austrian model, in fact, its content, this is already hybrid, as it embodies the American experience to realize rights.
=> Today, the American and Austrian, whether it is diffuse, concentrated, etc.. Are liable purposive, seeking to prevail under the Constitution and implement the right more.
iv. History in Brazil
A. The Charter of 1824 classically devoted to the Senate and the Legislature a possible role of constitutional jurisdiction.
B. Constitution of 1891 adopted the American system of judicial review and diffuse nature. This model was characterized by a process of provocation, the constitutional debate would be provoked. The Brazilian system has a root problem, which runs through the twentieth century: the country has no tradition of precedent, which leads to a weakening of the Supreme Court to enforce a decision.
C. The CF 1934 has two fixes: the current art. 52, X (it is for the Senate to exclude the unconstitutional rule) and to some extent, the centralized model (now art. 24) - the so-called "way off".
D. The CF 1946 is modeled on the 1934; remains diffuse control and interventional aspects. There is still a constitutional jurisdiction concentrated. The EC-16/65 introduces the aspect focused on the Brazilian legal system. The active legitimacy as we have today came only with the CF-88.
=> Way for discussion of unconstitutionality:
1. Exception: diffuse - ER - EC 45/04 - art. 52, X - At any time, the judge may rule on the constitutionality of a norm. The action can get to the Supreme Court through an extraordinary appeal. The 45/04 JV limits this by submitting it to a criterion of relevance.
2. Interventional Via: art. 34, VII - through federal intervention, the Supreme Court adopted the intervention that outweigh the constitutional principles.
3. Via Action: harshly criticized because there was a trivialization of its use.
a. direct action of unconstitutionality - art. 103 - Consecrated by the CF-88, mainly in art. 103, which is of standing (who may bring the action).
b. action of unconstitutionality by omission - receipt of the Portuguese law, the Supreme Court does not give practical effect.
c. Action for a declaration of constitutionality - art. 103, EC 45/04 - introduces the idea of binding effect erga omnes . The 45/04 JV favors the binding effect of this and ADIs. Both have the same effect. Question is: what is the difference between them?
=> These three routes of action are regulated by Law 9.868/99 and the EC 45.
d. ADPF - Law 9882/94 - Plea of principle (which in German is called "claim of citizenship" and in Spain, "amparo") the citizen's fundamental right to have an injured person goes straight to constitutional court. This action has two problems: the Supreme has not defined what are these fundamental principles, and is a character action alternative, no other means.
4. Via DF - term order: regulating the objective case. The STF emptied it, has no practical effect. The exception
the action of unconstitutionality by omission: it is in the process of action, the attorney general of the Union to defend the law as unconstitutional. It is mandatory that the MP has ruled on the constitutionality. You can not technically speaking, however, discussion or argument, as this analysis is straightforward.
B. The form, historical or dogmatic
1. The best example of historical or customary constitution is England, although it will walk into a statutory law.
2. There is a systematic approach. Hesse says that the Constitution is not a code because it has a systematic rationality, and the Constitution seeks to address all matters of importance to society. It is therefore natural that it be marked by conflict. Then comes the great importance of post-1945 interpretive principles. The Constitution does not have a drive, but the principles that allow you undergo a questioning of dogmatic.
C. The origin of the legitimacy of the Constitution: democratic (constituent power) or granted (by a non-legitimate constitutional power).
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