Political Reform and Neoconstitutionalism

According to the post-doctor in constitutional law, Daniel Sarmento, “Brazilian law has undergone profound changes in recent times, related to the emergence of a new paradigm both in legal theory and in the practice of the courts, which has been designated as “< strong>neoconstitutionalism”. These changes, which develop under the aegis of the Constitution of 88, involve several different phenomena, but reciprocally implied, which can be summarized as follows: (a) recognition of the normative force of legal principles and valuation of its importance in the process of applying the Law, (b) rejection of formalism and more frequent use of more open methods or “styles” of legal reasoning: pondering, topic, theories of argumentation, etc.; (c) constitutionalization of Law, with the irradiation of constitutional norms and values, especially those related to fundamental rights, to all branches of the legal system; (d) rapprochement between Law and Morals, with the increasing penetration of Philosophy in legal debates; and (e) judicialization of politics and social relations, with a significant shift of power from the Legislative and Executive spheres to the Judiciary Power. There are those who enthusiastically applaud these changes, and those who vehemently criticize them. However, there is no way to deny the magnitude of the changes that have been unfolding under our eyes.” Read the full text at Neoconstitutionalism in Brazil: Risks and possibilities.

As for political reform, Daniel says it is possible for a constituent to carry out political reform. “The most adequate solution from a constitutional point of view would be for the President of the Republic to submit a proposal for a constitutional amendment to Congress itself, which by two successive votes in each house in the three-fifths quorum could authorize the holding of this plebiscite and, finally this partial constituent assembly is promotedl”, he explains to Brazil Agency.

Daniel Sarmento is a Master and Doctor in Public Law at UERJ, with post-doctorate at Yale Law School, Adjunct Professor of Constitutional Law at UERJ and Regional Attorney of the Republic.

Written by Feitosa-Santana

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