Constitutional Hermeneutics

The theme of this master thesis is the interpretation of the agrarian property, from constitutionalized legal grounds, based on the Philosophy of Liberation hermeneutic proposal developed by the philosopher Enrique Dussel and on the changes in the agrarian property caused by the Latin-American New Constitutionalism. The work aims to provide new foundations for the study of agrarian law, in a context of paradigmatic crisis, through the development of new theoretical models that rearticulate legal thought before institutional transformations. The research is theoretical and it is based primarily in the works of Dussel, and in the constitutions of Venezuela, Ecuador and Bolivia. It can be concluded, according to Dussel, that praxis is the foundation and condition to the understanding of subjects in community and that linguisticity, instrumentality, historicity and intersubjectivity are articulated in the necessarily intentional and projective constitution sense, in view of, ultimately, the care of specific needs of the subjects living in community. Law is constituted in the praxis of subjects such as mediation institutionalized by power to satisfy those needs in everyday life and in multiple fields of existence. The Philosophy of Liberation, in turn, worries about the situation of domination, victimization, denial of rights, alienation that precludes the exercise of authentic interpretation, non participation in the institutionalization of law and its meaning as well as the instrumentalization of the interpreter for strange understanding that are negativ to their needs. In this sense, the modern property is interpreted in itseconomic, ecological, cultural, legal and geopolitical negativity, from the revelation of the mechanisms that make it servesto a project that denies the dignity of nature and human work for the benefit of a economic world system that pressuposes and asserts itself with the generation of systemic poverty, non-central countries dependency in the world-system, environmental and cultural destruction, and denial of rights. The crisis of this world system opens new institutional possibilities and demands the affirmation of new projects for Latin American peoples, with the consequent need for statement of rights. In this context, the LatinAmerican Transformative Constitutionalism faces the issue of access to land and denies the negativity of modern agrarian property in its various dimensions, through his transformation, and in view of new rights. This positivity from the victimsconstitute new foundations for the legal use of the land and transform the agrarian property models of interpretation

Este artigo analisa a hermenêutica constitucional concretista, considerando sua contribuição para a superação da “crise de efetividade” do Direito constitucional em relação aos direitos fundamentais sociais, bem como suas implicações para a efetividade do direito à educação.

This article deals with Gadamer's contribution to philosophical hermeneutics. Introducing the centrality of the concept of linguisticity in his thought, it discusses the criticism he made to the method as a means to get to the truth, to the objectivity of knowledge and at the same time to subjectivism. It also analyzes his main contributions and how they offer subsidies for legal hermeneutics. It concludes that the theoretical contribution of Gadamer can be considered still present for legal hermeneutics, in particular for constitutional hermeneutics.

The chief task of this essay is to assess the Bosnia-Herzegovina (BH) Constitutional Court decision of 1 July 2000 (U 5/98-III), which can be reduced to an attempt to demonstrate that the Dayton BH Constitution implies a thesis on constitutionality of all three BH peoples throughout the BH territory, without qualification. The essay aims to demonstrate that the decision is implausible and that it rests on a flawed interpretation of the constitution.  Such a demonstration is presented in Part 2 of the essay. Part 1 is an important introduction to the considerations in Part 2: it addresses the issue of foundational elements that all legal interpretations need to include and offers a view of interpretation that applies to all courts including the BH Constitutional one. Following the assessment of the U 5/98-III, which reads
the decision in light of political concerns, politicization, and political ideology, as a dominant and arbitrary factor of interpretation, Section 4 of Part 2 offers a number of analogies from the legal past, the American and German jurisprudential contexts in particular, to point to the future directions in which our common perceptions (and future reinterpretations) of the U 5/98-III are highly likely to evolve.

http://jus.com.br/947375-maria-fernanda-salcedo-repoles/artigos) O título da minha palestra foi pensado para ser uma provocação e a introdução ao que considero ser um dos temas centrais da hermenêutica constitucional contemporânea. Quando falamos no papel político do Poder Judiciário e especificamente da cúpula desse poder, que no nosso país é representada pelo Supremo Tribunal Federal, na maioria das vezes não percebemos que o sentido da palavra "político" foi esvaziada ao longo da história da instituição. Ao longo dessa história não encontramos um conceito único do que seja "o político" no que se refere ao papel do STF e isso está muito bem demonstrado pela própria jurisprudência.

The theme of this master thesis is the interpretation of the agrarian property, from
constitutionalized legal grounds, based on the Philosophy of Liberation hermeneutic proposal developed by the philosopher Enrique Dussel and on the changes in the agrarian property caused by the Latin-American New Constitutionalism. The work aims to provide new foundations for the study of agrarian law, in a context of paradigmatic crisis, through the development of new theoretical models that rearticulate legal thought before institutional transformations. The research is theoretical and it is based primarily in the works of Dussel, and in the constitutions of Venezuela, Ecuador and Bolivia. It can be concluded, according to Dussel, that praxis is the foundation and condition to the understanding of subjects in community and that linguisticity, instrumentality, historicity and intersubjectivity are articulated in the necessarily intentional and projective constitution sense, in view of, ultimately, the care of specific needs of the subjects living in community. Law is constituted in the praxis of subjects such as mediation institutionalized by power to satisfy those needs in everyday life and in multiple fields of existence. The Philosophy of Liberation, in turn, worries about the situation of domination, victimization, denial of rights, alienation that precludes the exercise of authentic interpretation, non participation in the institutionalization of law and its meaning as well as the instrumentalization of the interpreter for strange understanding that are negativ to their needs. In this sense, the modern property is interpreted in itseconomic, ecological, cultural, legal and geopolitical negativity, from the revelation of the mechanisms that make it servesto a project that denies the dignity of nature and human work for the benefit of a economic world system that pressuposes and asserts itself with the generation of systemic poverty, non-central countries dependency in the world-system, environmental and cultural destruction, and denial of rights. The crisis of this world system opens new institutional possibilities and demands the affirmation of new projects for Latin American peoples, with the consequent need for statement of rights. In this context, the LatinAmerican Transformative Constitutionalism faces the issue of access to land and denies the negativity of modern agrarian property in its various dimensions, through his transformation, and in view of new rights. This positivity from the victimsconstitute new foundations for the legal use of the land and transform the agrarian property models of interpretation.