O constitucionalismo no cenário pós-nacional : as implicações constitucionais da mundialização e a busca por fontes alternativas de legitimidade

Abstract

This doctoral thesis addresses the problem of constitutionalism in an era of globalization. Based on the philosophical and methodological contribution of Gadamer’s hermeneutics, the text is written mirroring the principles of dialectics. The chapters are articulated in twos, comprised of a landscape with many shades overlapping between opposites. The first chapter refers to the pillars of the liberal state of law. In the second chapter, we indicate the conformation of the political and social democratic state of law, inaugurated under its own designs as a result of the interaction between state, constitution and civil society. Departing from the principle that the genesis of constitutionalism has its basis in the national state, they are now being challenged by the new post-national dynamics, or rather by globalization, understood as the contemporary zeitgeist. Globalization is discussed in the next two chapters. The third chapter characterizes globalization as a descending and hegemonic process, while the fourth chapter reveals its ascending aspects through the theme of human rights and the universalization of a global civil society. The fifth chapter focuses on constitutionalism and offers a doctrinaire reading about it by having, on one hand, the dynamics of the internationalization of constitutional law and the constitutionalization of international law, on the other. Lastly, some constraints of post-national constitutionalism begin to be defined. Even deeply challenged, post-nationalism has, in its own founding elements - peace, human rights and democracy - conditions to reassert its centrality to a civilizing project that is still based on the philosophical assumptions of modernity and on the expectations arising from it. To meet this end, however, alternative forms of legitimacy should be sought: they must not only draw attention to a transconstitutional dialogue, but also project civil society into a post-national scene.