Constitutional and democratic legitimacy in the new contexts of Constitutionalism

• Autor(a) principal: Magalhães, Bruno Dias
• Data de Publicação: 2018
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista de Ciências do Estado (Online)
• Texto Completo: https://periodicos.ufmg.br/index.php/revice/article/view/e5141
• topic: Constitutionalism; Democracy; Deliberation; Normative force; Constitucionalismo; Democracia; Deliberação; Força normativa; Constitucionalismo; Democracia; Deliberación; Fuerza normativa

The present article seeks to analyze the influences and tensions between constitutionalism and democracy, specifically with respect to how constitutional rights, rules and principles potentiate or undermine political deliberation in the current context of social pluralism. In addition, it seeks to analyze how the Constitution itself is also influenced by deliberation in the public sphere. In order to do so, it starts from the concept of normative force as a pretension of validity, as formulated by Hesse (1992), bringing it in the light of the most recent doctrinal perspectives, in consonance with the new contexts of the constitutionalism. This exercise allows us to recognize at least three aspects inherent in the relationship between constitutional ism and democracy. Firstly, in a context of pluralism, social conflicts can not be exhausted only at the level of the fundamental text, requiring action by the infraconstitutional policy. Second, each participant acts in the accomplishment of the constitutional norm in a partial, contingent and more or less mediated way, and the positions are determined by the democratic rules in force. Finally, democratic legitimacy is capable of influencing constitutional legitimacy and vice versa. As a proposal for future studies, it is suggested to apply the theoretical framework formulated to empirical analysis.