Publication
A Concretização do Estado Constitucional pela Justiça Constitucional: (Im)Possibilidades Jurídicas
| Summary: | One of the great debates in constitutional law is the role of the Constitutional Court in a Constitutional State, given that it is a non-elected body whose purpose is to veto political decisions made by an elected Parliament. An approach based on Niklas Luhmann's Systems Theory will be presented to analyze this role. To this end, the concept of the Rule of Law will first be established, as well as the consequences of the emergence of the Constitution and its effects on the Rule of Law. It will then be established that the Constitutional State is the epitome of the separation between Law and Politics, in which political activity must be in accordance with legal terms to be legally valid. Having established this context of the Constitutional State, it will be shown what its repercussions are on the applicability of constitutional norms, which must be applied under the penalty of allowing constitutional nominalism. Once this context of the Constitutional State has been established, the repercussions on the applicability of constitutional norms will be demonstrated. Secondly, an analysis will be made of the theories of the last word and their limitations in the study of judicial review. As a way out of the dispute between Parliament and the Constitutional Court, the idea of provisional last words and procedural rounds elaborated by Conrado Mendes will be examined, allowing the Constitutional Courts to be examined from another angle without getting into the endless discussion about who is best to decide on matters of fundamental rights. As a result, the role of the Constitutional Court in the Constitutional State will be verified, and, in conclusion, the extent to which the Constitutional Courts can act to concretize the norms and the constitutional project. |
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| Main Authors: | Lino, João Victor Bião |
| Subject: | Systems Theory Constitutional Court Judicial Review Constitutional State Teoria dos Sistemas Justiça Constitucional Controle de Constitucionalidade Estado Constitucional |
| Year: | 2024 |
| Country: | Portugal |
| Document type: | master thesis |
| Access type: | open access |
| Associated institution: | Universidade de Coimbra |
| Language: | Portuguese |
| Origin: | Estudo Geral - Universidade de Coimbra |
| Summary: | One of the great debates in constitutional law is the role of the Constitutional Court in a Constitutional State, given that it is a non-elected body whose purpose is to veto political decisions made by an elected Parliament. An approach based on Niklas Luhmann's Systems Theory will be presented to analyze this role. To this end, the concept of the Rule of Law will first be established, as well as the consequences of the emergence of the Constitution and its effects on the Rule of Law. It will then be established that the Constitutional State is the epitome of the separation between Law and Politics, in which political activity must be in accordance with legal terms to be legally valid. Having established this context of the Constitutional State, it will be shown what its repercussions are on the applicability of constitutional norms, which must be applied under the penalty of allowing constitutional nominalism. Once this context of the Constitutional State has been established, the repercussions on the applicability of constitutional norms will be demonstrated. Secondly, an analysis will be made of the theories of the last word and their limitations in the study of judicial review. As a way out of the dispute between Parliament and the Constitutional Court, the idea of provisional last words and procedural rounds elaborated by Conrado Mendes will be examined, allowing the Constitutional Courts to be examined from another angle without getting into the endless discussion about who is best to decide on matters of fundamental rights. As a result, the role of the Constitutional Court in the Constitutional State will be verified, and, in conclusion, the extent to which the Constitutional Courts can act to concretize the norms and the constitutional project. |
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