Reforma constitucional, por via de emenda, e o direito adquirido

AUTOR(ES)
DATA DE PUBLICAÇÃO

2004

RESUMO

This parer is about a constitutional dogmatic issue: Is there any acquired rights against constitutional amendments? Or is it possible to modify the Constitution through reform, changing its effects without focusing on the citizens individual rights incorporated to their patrimony? This key question is the center of the whole study that is built analytically on the foundations of a "style" of thought guided to the solution of the problem. It is necessary then to talk about power, reform procedures and their limitations, interpretation, acquired rights, among other rhetorical points of constitutional dogma. The emphasis on dogmatic language, on the lights to clarify the decision, do not demerit the use of a methodology intent on the utilization of zetetic means, on the consubstantiation of a dogmatic reasoning. There is no "Babel" of approaches;there is just an attempt to lay the foundation of the dogmatic speech. Following this made, although the acquired right has constitutional matrix (addendum XXXVI to article5), the constitutional legislator does not translate a concept. The definition is found in the systematic of the third paragraph of article 6 of the Civil Code Introduction Law; however there remain the ambiguity and vagueness of every linguistic symbol. Controversy comes up in the remittance made by the fourth paragraph of article 60, addendum IV to article 5, all of them belonging to the 1988 Federal Constitution, changing materially the edition of amendments that ask for the abolition of individual rights and guarantees. Two crypto normative speeches interpret the web of constitution articles. The first one considers the word "law" (addendum XXXVI to article 5), as a commandment directed only to the infra-constitutional legislator, while the amendment is free to be changed irrespective of acquired rights, in so far as it confers the constitutional status upon the reform legislator. The second speech understands the semantic scope of the same sign - "law" - as being extensive to the legislator of the reform procedure that can never hurt acquired rights - this phraseology being an unchangeable clause of the Constitution. The main issue becomes more critical as far as Brazilian dogmatics is concerned, because there are cases in which the subjective right to be acquired is conferred directly by the Constitutional Text. The significance of the theme cannot hide the conflicting social texture. The "worldalization" of the economy and the development of information technologies has narrowed distances of global space and time. The reflexes or the juridical dogmas are flexibility of concepts, as for instance constitutional supremacy and sovereignty, apart from a voluminous reformation process of the Constitution. Society, which has been considered as a communication machine that produces complexities, considers the Constitution as a symbolic reduction of possibilities created by social demands. Law does not eliminate the entire social conflict, but, through selection, it reduces complexity according to its own rules and then, and only then, will it render its decision to society.In search of the power to decide, the second speech mentioned above is chosen for the defense of acquired rights in the face of constitutional amendments, not with the pretension of putting an end to internal dogmatic divergence, but rather in order to pave the way for the open society of interpreters of this symbolic dialog that is the Constitution

ASSUNTO(S)

emendas constitucionais direito direito adquirido acquired rights constitutional amendments

ACESSO AO ARTIGO

Documentos Relacionados