Abstract
The objective of this article is to study different models of legitimacy of the law, especially those built during and after the Middle Ages, guided initially by the multiplicity of sources and characterized in the figure of the keeper, or of the one who observes and respects a preestablished order; by the School of Exegesis, whose only possible source of law would be state-centered and law-centered, representative of the volonte generale, and, finally, by the German Historical School, in which law would be the result of historicity and would be embodied in the volksgeist. After these preliminary investigations regarding models of legitimacy, the general pillars of the so-called neoconstitutionalism movement, the fruit of the post-war period, are presented as an attempt to approximate constitutional norms, especially principles, with factual reality. characteristic of the rescue of the moral in the core of the juridical system. It is criticized that this model sometimes undermines in an exacerbated protagonism of the Judiciary, which should operate in a sense of self-restraint in some cases, leaving to the political powers some fundamental choices.
Highlights
The objective of this article is to study different models of legitimacy of the law, especially those built during and after the Middle Ages, guided initially by the multiplicity of sources and characterized in the figure of the "keeper", or of the one who observes and respects a preestablished order; by the School of Exegesis, whose only possible source of law would be state-centered and law-centered, representative of the volonté générale, and, by the German Historical School, in which law would be the result of history and would be embodied in the volksgeist
After these preliminary investigations regarding models of legitimacy, the general pillars of the socalled neoconstitutionalism movement, the fruit of the post-war period, are presented as an attempt to approximate constitutional norms, especially principles, with factual reality. characteristic of the rescue of the moral in the core of the juridical system. Detractors of this model say it sometimes undermines in an exacerbated protagonism of the Judiciary, which should operate in a sense of selfrestraint in some cases, conceding to the political powers some fundamental choices
Pode-se dizer, em síntese, que se trata de um movimento jurídico gestado no pós segunda guerra que visa a trazer uma nova dinâmica ao direito, sobrepondo as concepções positivistas mais clássicas e (re)colocando aspectos morais no âmbito do jurídico, através da carga axiológica dos princípios e de novas noções que servem de fundamento às constituições, trazendo ainda uma dita "nova hermenêutica" pautada em soluções abertas e "flexíveis" para casos que não podem ser resolvidos por mera subsunção[53], com o aporte de métodos como a ponderação e a razoabilidade em detrimento da subsunção
Summary
The objective of this article is to study different models of legitimacy of the law, especially those built during and after the Middle Ages, guided initially by the multiplicity of sources and characterized in the figure of the "keeper", or of the one who observes and respects a preestablished order; by the School of Exegesis, whose only possible source of law would be state-centered and law-centered, representative of the volonté générale, and, by the German Historical School, in which law would be the result of history and would be embodied in the volksgeist.
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