ABUSIVE CONSTITUTIONALISM AND ITS INADEQUATE RECEPTION IN BRAZIL

Authors

  • Diego Ferreira dos Santos UFRGS
  • Marcelo Schenk Duque Universidade Federal do Rio Grande do Sul

DOI:

https://doi.org/10.56256/themis.v22i1.1032

Abstract

After the Cold War, there has been a proliferation of hybrid regimes in international politics. In these systems, roughly speaking, there is a combination of democratic rules and authoritarian practices, so that they are situated in the middle ground between full democracies and dictatorships. In this context, David Landau identifies an increasingly present phenomenon, which he calls abusive constitutionalism. This phenomenon involves the use of mechanisms of constitutional change (constitutional amendment and replacement) to weaken democracy and guide a political system to a less than democratic regime. In the legal environment, it is common for legal concepts, theories, and models produced in a given country to be “copied” by others. This is the process known as legal transplant. The reception of foreign legal models thoughtlessly by the doctrine is too risky and takes center stage in this study. From this, the problem of the present research is imposed: has the Brazilian academic production appropriately assimilated David Landau's theory of abusive constitutionalism? The methodology used to solve the issue is based prevalently on a bibliographical survey of specialized books and articles and is carried out by confronting the views of national authors with the paradigm launched by Landau. At the end, it is concluded that the Brazilian doctrine inadequately received abusive constitutionalism.

Author Biographies

Diego Ferreira dos Santos, UFRGS

Mestrando em Direito pela UFRGS. Especialista em Direito Processual Civil pela UNINTER. Graduado em Direito pela UFMS. Juiz de direito no TJRS.

Marcelo Schenk Duque, Universidade Federal do Rio Grande do Sul

PhD in State Law from the Federal University of Rio Grande do Sul, ed. from the Ruprecht-Karls Universität Heidelberg (Germany): Institut für deutsches und europäisches Gesellschafts- und Wirtschaftsrecht and Institut für ausländisches und internationales Privat- und Wirtschaftsrecht. Post-doctorate from IDP Brasília. He worked as a visiting researcher at the Europa Institute of the Universität des Saarlandes (Germany). Collaborating professor in the stricto sensu Postgraduate Program in Law at UFRGS. Professor of various lato sensu specialization courses at the UFRGS Law School. Professor at the Federal Judiciary School of RS, where he coordinates the Constitutional Law subject. Professor at the School of the Judiciary of RS (AJURIS). Guest lecturer at various lato sensu postgraduate courses such as PUC/RS, FMP, among others. University lecturer at the Dom Bosco Faculty in Porto Alegre and substitute lecturer at the UFRGS Faculty of Law, in the area of Public Law. Chairman of the Special Committee on Political Reform and member of the Constitutional Studies Committee of the OAB/RS.

Downloads

Published

2024-07-31

Issue

Vol. 22 No. 1 (2024)

Section

ARTIGOS CIENTÍFICOS