THE CONSTITUTIONALISM IN BRAZIL AND THE NECESSITY TO NEW'S INSURGENCY: HOW THE NEOCONSTITUTIONALISM DOESN'T OVERCOME THE POSITIVISM

Abstract

The term neoconstitutionalism, coined by a group of spanish and italian constitutionalists, although it has represented a major step toward the affirmation of the normative force of the Constitution in Continental Europe, in Brazil turned out to institutionalize uncritical reception of the jurisprudence of values, the Robert Alexy's argumentation theory and the North American judicial activism. Thereby, it passed two decades since the 1988's Constitution, and taking into account the specificities of Brazilian law, it is necessary to recognize that the characteristics of that neoconstitutionalism have caused pathological conditions in our present context, ultimately contributing to the corruption of the Constitution's text. Thereby, in order to preserve the autonomy of law and the democratic achievements of the second post-war, it is necessary, from a hermeneutic perspective, to understand the neoconstitutionalism's characteristics, as well as its relationship with legal positivism. Furthermore, it will be demonstrated why is it better to call the constitutionalism established from the second post-war as Contemporary Constitutionalism (with capital letters), to avoid the misunderstandings that permeate the term neoconstitutionalism.