O paradoxo do tratado constitucional europeu: entre o planejamento e a evolução da Europa comunitária
The introduction of a European Constitutional Treaty into the legal system calls into question two of the most deeply rooted juridical institutions of the West: the Constitutions and the Treaties, both of which depart, from the point of view of traditional doctrine, with different conceptual presupp...
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Main Authors: | , |
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Format: | Article |
Language: | Portuguese |
Published: |
2017
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Subjects: | |
Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=6130180 |
Source: | Revista de Investigações Constitucionais, ISSN 2359-5639, Vol. 4, Nº. 2, 2017 (Ejemplar dedicado a: maio/agosto), pags. 131-146 |
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Summary: |
The introduction of a European Constitutional Treaty
into the legal system calls into question two of the most
deeply rooted juridical institutions of the West: the Constitutions
and the Treaties, both of which depart, from
the point of view of traditional doctrine, with different
conceptual presuppositions. The paradox is linked to the
conditions of evolution and planning of the global social
system. Thus, the present article seeks to analyze the way
in which the two models of legal diplomas - widely used
in the global society - began to receive a different meaning
due to the aforementioned co-evolution. To do so, it analyzes the two institutes from an angle related to
the possibility of planning and controlling the evolution
of a particular society, in the specific case the European
Community, in which both the referendum and parliamentary
approval proved its ineffectiveness for the need
to understand the meaning of a new legal structure. The
methodology used is based on the structural functionalism
of Niklas Luhmann in the autopoietic aspect of his
theory of autopoietic social systems. For this line, the
referendum is, therefore, a mechanism of self-reference
of the legal system. The results of the European suffrage
show this paradox, leaving open the doubt about the
need of planning the community space or the evolution
from its own characteristics. This last concept is what explains
this failure, given the complexity of the structures
of a typical cross-border society such as the European
one. |
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