Abstract
This essay proposes a new theoretical model directed towards the observation of fundamental rights present in the Constitutions of peripheral States. Parting from a critical revision of classic perspectives oriented by the dogmatic affirmation of fundamental rights and the institutional tradition derived from sociological observation, these rights perform a dual function. They are responsible for the structuring of normative expectations and, at the same time, they construct internal dogmatic limits within the system. Through the contributions of phenomenology and social systems theory, this model suggests autonomous spheres of fundamentality in contrast to the classical unity of fundamental rights. Furthermore, the balancing schemes are substituted for an internal “law of collision.” Conflict resolution undergoes a shift from the traditional method to the system’s reflexive pragmatics, contributing to the legal security and the democratic legitimacy of judicial review. Finally, it verifies how this theory could be applied to the advent of the Zika virus which affected Brazil from 2015 to 2017. As the Zika virus crisis involves different spheres of fundamentality, entailing a range of systems of law and therefore revealing different collision patterns, this essay demonstrates how this new approach could contribute to the control of solutions.
Highlights
This essay proposes a new theoretical model directed towards the observation of fundamental rights present in the Constitutions of peripheral States
Parting from a critical revision of classic perspectives oriented by the dogmatic affirmation of fundamental rights and the institutional tradition derived from sociological observation, these rights perform a dual function
This paper proposes a functional revision of the theory of fundamental rights on the horizon of meanings for a complex and global society
Summary
In order to effectively analyze the foundations of the flow of meaning in the legal Constitution, the following theoretical fields must be addressed: a) the asymmetric. While the “possibilities” of the systems present in the environment can be observed as“impossibilities”of the legal system, the expectations of limitation are structured as “needs” of the legal system This difference between the impossibilities/ needs of the legal system marks fundamental rights in their three dimensions: a) the social (of consensus/dissent), b) the temporal (before/after) and the objective dimension (outside/inside). Principles are capable of structuring, legally, different meanings of practical reason, and this reveals the assimilation of social dissent, the legal system’s self-recursion to the principles produces (internally) spheres of fundamentality that go beyond the level of consensus on the symbolicgeneralized structure of fundamental rights and constitute negative/positive limits on the impossibilities/needs of this system. Observing them is relevant to identifying and controlling the collision zones
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