El declive de la Teoría del Poder Constituyente Originario (original) (raw)
Related papers
Presentación del dossier. La cultura del razonamiento constitucional en América Latina
2018
The relevance of studies on constitutional reasoning has grown parallel with the interest in engaging with the global constitutional discourse. Initially, the interest to know other countries' answers to certain common problems emerged together with the evolution of comparative constitutional law into a separate discipline. Over time, it has become clear that there are numerous different solutions for our common concerns and that these depend on the social, political, historical context and the concrete needs of the country in question. Even though the answers can be different, the way we approach, discuss and debate these problems seem to be very similar. Therefore, the question put forth by comparative constitutional reasoning is not what the answers are, but how we understand and find them. In Latin America today, we encounter several divisions like race, religion, social welfare, education, gender etc. that are reflected in the different theories and doctrines of the region's constitutional laws. The question that concerns us is if one can still look for and find a common ground in the midst of these divisions, which could serve as a basis for engaging, understanding and discussing constitutional issues. It is the attempt of this Dossier to start such a dialogue within the Latin American region, by including scholars also from outside and inside the Latin American region. Among the articles presented in this Issue, we can find several topics that focus on the dialogue both on a global and on a regional, Latin American level, like the one on the cross-fertilization of the Inter-American Court of Human Rights and the European Court of Human Rights or the one on conventionality control. Others discuss key concepts of the region's constitutional reasoning, such as the principle of equality and constitutional identity. Furthermore, the first article serves as a proposal to discuss the universal question of what makes a good lawyer. The key condition to engage in a debate about these problems require an open and honest debate. The problem of understanding and the method we use to argue and debate different issues holds an important role in public debate. Language and reasoning are not mere means of communication, but they also represent the fundamental questions of existence, as it was pointed out by Heidegger in Being and Time (1927). Understanding the world begins with understanding ourselves: the beings we are, the time and context in which we exist, the reality that surrounds us, and our immediate problems. Thus, and following Hans-Georg Gadamer in Truth and Method (1960), the means through which we understand the world is "ourselves". Hence, we have more than only the capacity to know ourselves: we are also able to understand others and challenge ourselves in order for a better understanding. We have, therefore, the ability to reflect honestly, openly and responsibly on our views in order to recognize what motivates us and what are the justifications of our decisions. This reflection can only happen through providing and accepting reasons, i.e. debating openly and truly listening to the arguments of others, just as occurs in human life in general. A healthy and functional public discourse, therefore, assumes a common ground, since all the opinions demand to be recognized in the light of a common goal: to discuss how
2020
This book of Professor Allan R. Brewer-Carías, on The Collapse of the Rule of Law and the Struggle for Democracy in Venezuela, is the continuation for the period 2015-2020, of his work studying the erosion of the Venezuelan democratic system and the development of an authoritarian government that began after the election in 1998 of the late Hugo Chávez Frias as President of the Republic. The book, consequently, follow chronologically what the author explained in his previous two on this same matter: the first one titled: Dismantling Democracy. The Chávez Authoritarian Experiment, published in 2010 by Cambridge University Press; and the second, titled: Authoritarian Government v. The Rule of Law. Lectures and Essays (1999-2014) on the Venezuelan Authoritarian Regime Established in Contempt of the Constitution, published in 2014, by Fundación de Derecho Público, Editorial Jurídica Venezolana. Unfortunately, since 2015 the situation in the country has worsened, the world having witnessed, on the one hand, the definitive collapse of the rule of law on the hands of the government lead by Nicolás Maduro who was elected President after the death of Chavez in 2013; and on the other, the struggle to restore democracy lead by the National Assembly elected in December 2015, the only legitimate elected institution in the country. Since 2016, the National Assembly has been acting in the midst of a serious unconstitutional situation, which has resulted, first, from the actions of a Supreme Tribunal of Justice in collusion with the Executive branch of Government, systematically curtailing powers and functions of the Assembly; second, from the fraudulent convening and election of a Constituent Assembly in 2017, in violation of the provisions of the Constitution, which has usurped the legislative functions; and third, from the unconstitutional call by the said Constituent Assembly, of an anticipated and unconstitutional presidential election in order to reelect Nicolas Maduro as President of Venezuela in 2018; a reelection that was considered as a “farce” by the National Assembly declaring it as “nonexistent.” The result was, in January 2019, facing the lack of a legitimately elected President that could take his oath for the presidential term 2019-2025, the assumption by the National Assembly of a constitutional transition process to restore democracy and reestablish the enforcement of the Constitution. This book is a recollection of the Lectures, Papers and Presentations written by the author analyzing all the most important decisions issued by the authoritarian government and its Supreme Tribunal against the rule of the Constitution, as well as of the National Assembly in order to restore democracy and the rule of law.
O Ativismo Judicial e Sua Validade No Âmbito Do Estado Democrático De Direito
Revista da Faculdade Mineira de Direito, 2021
The actual article aims to analyze the validity of judicial activism within the scope of the Democratic State of Law under the bias of the Systems Theory. For that purpose, the following aspects will be investigated: the distinction between society, system, communication, programming and coding; the luhmannian theory and its systems; the evolution of systems and the and the communicative forms of propagation; the time according to Luhmann, the conception of a systemic unity and the existence of autonomous branches of the law, and the distinction between judicial activism, motivated free conviction of the judge and judicial pro-activity and the risk to the Democratic State of Law in the face of an eventual dictatorship of the judiciary. In order to obtain the results intended by this research, the method of approach to be followed will be the empirico-dialectic, making use of a bibliographic and legislative research, having as a background a reference system based on the linguistic turnaround, represented by the Logical Semantic Constructivism taken from Paulo de Barros Carvalho. In conclusion, it is demonstrated that judicial activism does not have validity within the Democratic State of Law, if it is based on the theoretical framework adopted here.
2021
The actual article aims to analyze the validity of judicial activism within the scope of the Democratic State of Law under the bias of the Systems Theory. For that purpose, the following aspects will be investigated: the distinction between society, system, communication, programming and coding; the luhmannian theory and its systems; the evolution of systems and the and the communicative forms of propagation; the time according to Luhmann, the conception of a systemic unity and the existence of autonomous branches of the law, and the distinction between judicial activism, motivated free conviction of the judge and judicial pro-activity and the risk to the Democratic State of Law in the face of an eventual dictatorship of the judiciary. In order to obtain the results intended by this research, the method of approach to be followed will be the empirico-dialectic, making use of a bibliographic and legislative research, having as a background a reference system based on the linguistic t...
State and Power after Neoliberalism in Bolivarian Venezuela
2012
State and Power after Neoliberalism in Bolivarian Venezuela examines the limits and possibilities of collective subject formation in the context of social transformation. It argues that the Bolivarian process was made possible by new forms of political community and collective life that emerged in resistance to the neoliberal restructuring of state and society in the 1980s and 1990s. Specifically, the cycle of struggles that began with the caracazo of 1989 opened a terrain for groups from the margins of Venezuelan society to mobilize and shape politics in that country. By the end of the twentieth century, grassroots pressure from below and the state's abandonment of its side of the social contract resulted in a situation of ungovernability in Venezuela. The government of Hugo Chávez has worked to capture the creative energy of these elements, but has yet to definitively break with the norms and institutions of the sovereign nation-state. This dissertation presents the theoretical consequences of this undecided balance of forces as a reconfiguration of the modern dialectic between constituent and constituted power. Focusing on moments where the government has failed to capture the force of what the Marxist-Spinozist tradition has identified as the multitude, I argue Bolivarian Venezuela offers an important site from which to reconsider key elements of modern liberal thought such as the citizen, the nation, and the social contract as well as more recent critical concepts such as the multitude, hegemony, and populism. ! "#! ACKNOWLEDGMENTS Any project of this length is inevitably a collective one, even if authorship is also inevitably assigned to an individual. It would be impossible for me to thank everyone who has contributed to this work-let alone to my political, intellectual, and personal formation along the way. I would like to thank all of my colleagues and students in the departments of Politics, Latin American and Latino Studies, and History of Consciousness at UCSC for the years of seminars, discussions, protests, and hours and hours of debate. Any mistakes or misstatements in this dissertation, of course, are solely my own.
LA CONSTITUCION DEL REINO UNIDO
INSTITUCIONES POLÍTICAS Y DERECHO CONSTITUCIONAL
Este material esta constituido por los capítulos 14 y 15 del Tomo II de la obra del profesor Tulio Álvarez-Ramos "Instituciones Políticas y Derecho Constitucional". El contenido es el siguiente: 1. UNA CONSTITUCION MATERIAL. 2. LA REVOLUCION INGLESA. 3. LA LEY CONSTITUCIONAL INGLESA. 4. EL PARLAMENTARISMO. 4.1. ANTECEDENTES Y CÁMARA DE LOS LORES. 4.2. PERIODOS DE LA EVOLUCION CONSTITUCIONAL. 4.3. LA CÁMARA DE LOS LORES. 4.4. PREPONDERANCIA DE LA CAMARA DE LOS COMUNES. 4.5. FUNCIONAMIENTO DE LA CÁMARA DE LOS COMUNES. 4.6. FORMACIÓN DE LA LEY. 4.7. MECANISMOS DE CONTROL. 4.8. COMISIONES PARLAMENTARIAS. 4.9 PRIVILEGIO DEL PARLAMENTO. ANEXOS: 5) LA CARTA MAGNA. 6) DECLARACION DE DERECHOS ("Bill of Rights"). 7) LEY DE MODIFICACION DEL HABEAS CORPUS ("Habeas Corpus Amendment Act"). 5. EL ROL DE LOS PARTIDOS EN EL EQUILIBRIO DEL SISTEMA. 6. EL EQUILIBRIO PARLAMENTO-GABINETE Y LA CONFORMACIÓN DEL PODER EJECUTIVO. 7. LAS NORMAS DE SUCESIÓN. 8. EL PRIVY COUNCIL OFFICE. 9. ESTADO REGIONAL. 10. CONNOTACIÓN DEL CAMBIO CONSTITUCIONAL EN EL PLANO JUDICIAL. ANEXOS: 8) LEY DE INSTAURACION ("Act of Setlement"). 9) LEY ORGANICA DEL PARLAMENTO ("Parliament Act") (18 de agosto de 1911). 10) ESTATUTO DE WESTMINSTER. 11) CRONOLOGÍA DEL PARLAMENTARISMO BRITÁNICO.
philodroit.be, 2010
A vigorous constitutional movement has characterized the last two decades of Latin American politics. Claiming to recover popular sovereignty through the establishment of new constitutions the reformers, led by the Venezuelan president Hugo Chavez, aim at moving beyond the heritage of liberal modernity and establishing new states capable of abolishing historical oppressions and accomplishing emancipation. I inquire into the philosophical underpinnings of this idea, and particularly, into the concepts of legality and legitimacy in which this project is built upon. This thriving work proposes an interdisciplinary approach bringing together the history of philosophical ideas and a contextualized political, legal and sociological analysis of contemporary politics in Latin America. I conclude that the underlying philosophy and institutional setting of the new Latin American constitutions, and particularly those issued of the Bolivarian Revolution, do not provide an alternative to the liberal modern state, but they establish an new ideological framework aiming to recover the lost faith in the modern ideals.
International Sociology, 2010
Víctor Pérez-Díaz, El malestar de la democracia, Crítica, Barcelona 2008, 272 pages Winston Churchill's oft-quoted but bleak adage describes health as a transitory state between two illnesses. A similar thought may enter the minds of those who read this book about the ailments of democracy, for it is an analysis that goes way beyond examination and criticism of the different models of representation and exercise of power-it contemplates the foundations of the political community and the possible connections (not always obvious) between its most basic deficiencies and weaknesses and its most common manifestations of pathology. Naturally, such an analysis has led the author to take a close look at thousand-year-old texts-though not only these, of course-and to make observations about the long-standing nature of our problems and institutions rather than emphasize their innovative and/or revolutionary aims.