Aspectos históricos e conceituais do neoconstitucionalismo e sua relação com o positivismo jurídico

AUTOR(ES)
DATA DE PUBLICAÇÃO

2008

RESUMO

This Masters thesis was developed in the area of the foundations of positive law as well as in hermeneutics and constitutional principles. Its objective is to identify historical and conceptual aspects of neoconstitutionalism and its relation to legal positivism. In this research, an inductive method based on bibliographical research was used. Changes to the classical notion of constitutionalism which consists in the mere exaltation of principles written in a countrys constitution are presented. Modern constitutionalism represents a freedom technique against authoritarian government, imposing a government of laws over a government of men. This concept is present in the rule of law, which is the nexus of legislative production. Legal positivism reduces the sphere of law to legislation and conceives law as fact, and not as value. The experience of totalitarian governments jeopardized the rule of law model. The constitutional state arises at this moment. Constitutions discipline legislative production and constrain legislative content within the bounds of human and social rights. The substantive content of constitutions goes beyond the mere organization of states and enables the guarantee of human rights inscribed therein. The classical legal positivism approach is insufficient from a constitutionalized legal system standpoint. In this perspective, neoconstitutionalism is opposed to the legal positivist view because of the connection neoconstitutionalism establishes between law and morality. Moral standards, when incorporated into the rule of recognition, make legal inclusive positivism compatible with neoconstitutionalism. It can be concluded that the constitutional state requires more, from jurisprudence, than a mere description of the law or an application of the rule of subsunction. This posture is compatible with neoconstitutionalism and inclusive legal positivism, because both incorporate moral values into law

ASSUNTO(S)

rule of law estado constitucional de direito constitucionalismo constitutional state positivismo jurídico estado de direito neoconstitutionalism constitutionalism constituição legal positivism constitution neoconstitucionalismo direito

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