O guardião da Constituição na polêmica Kelsen-Schmit : Rechtsstaat como referência semântica na memória de Weimar

AUTOR(ES)
DATA DE PUBLICAÇÃO

2007

RESUMO

This Master in Laws thesis has its object in the polemic between Hans Kelsen and Carl Schmitt about of who should be the guardian of the Constitution, on the twilight of the Republic of Weimar. Schmitt, in a coherent way with his juridical decisionism, uses to believe that the Reichs President, with support on the dictatorial powers granted by the well-know art. 48(2) of the Weimars Constitution should be the guardian. On the other hand, Kelsen had suggested that a constitutional court is the one who should be the guardian of the Constitution position that the Staatsgerichtshofs jurisprudence begins to expressly agree. Nevertheless, the most of the conservative sectors of the Republic of Weimar seems closer to Schmitts thesis that became even stronger after the initiation of the 1929s economic Crack that promoted tragic effects in Germany. The symbiosis between these theories and the biographies of these respective supporters have resulted after the end of the World War II to put the Kelsen solution, the constitutional review, in the condition of something naturally democratic, when it is compared to the Schmitts explicit authoritarism: mainly by the Brazilian conservative constitutionalists, who are likely to read the art. 102 of the Federal Constitution at this light. From the point of view of Niklas Luhmanns theory of evolution it is possible to contest this consensus. The assonances and dissonances between the theories of Kelsen and Schmitt can be measured by the way they used to select the Rechtsstaat-reference to answer to what was the main problem of the Republic of Weimars public law: the problem of the conservation of the unity of the State in a mass democracy based in the popular sovereignty. This procedure will show that Kelsen and Schmitts motions seem to be more near than the juridical guides suggest, and that there is not nothing of naturally democratic in a court that decides monolithically the constitutional questions.

ASSUNTO(S)

hans kelsen carl schimitt direito constitucional república de weimar

ACESSO AO ARTIGO

Documentos Relacionados