Constituição e hierarquia normativa (2005)
- Autor USP: PEREZ, DIEGO SELHANE - FD
- Unidade: FD
- Sigla do Departamento: DES
- Subjects: CONSTITUIÇÃO; HIERARQUIA DAS LEIS; HERMENÊUTICA (DIREITO)
- Language: Português
- Abstract: This thesis focuses its study on the relation between the normative hierarchy and the Constitution, in order to unfold a better understanding of each of process of mutual clarification. It seeks to learn the lesson taken from the perception that it is not possible to properly understand the first phenomenon without well understanding the latter, and vice versa. Hence the work starts with the analysis of the process of understanding cultural phenomena, among which the law, especially focusing on the role of pre-understanding, as a condition for the proper understanding, and the hermeneutical spiral, which, through alternated steps, refines the initial understandings and leads into an approach of the phenomena. Such analysis not only shows the epistemological reality of the present thesis, but also justifies its leaning on the history of political and legal ideas and on the theory of law, as indispensable elements for a correnct understanding of the relation between the hierarchy and the Constitution. Our study of the political and legal ideas is focused on the defense of the conducting (arché), in the political field, of some sacred (hieres) rational and/or ethical principles, in order to demonstrate that the expression "government of laws" essentially means "Supremacy of the just Law", and that the constitutionalism, heir of the best antiquity and middle age legal and philosophical traditions, strives to institutionally defend the supremacy of an idea of justiceidentified with the protection of liberty and human dignity, according with the liberal humanism. The normative hierarchy, therefore, takes its fundamental philosophical foundation from the ideal of the Supremacy of the Law, and brings to such ideal the most developed possibilities of fullfilment. With such an approach we try to clrify some concepts - norm, normative disposition and act, validity, applicability, norms of competence - which are Continuação) essencial to the analysis of normative hierarchy and its reflection on constitutional systems, in order to assume consistency to our conclusion that withian legal orders in which there is a supreme and normative Constitution there exists fours different typers of normative hierarchy: formal, logical, structural and axiological. At last, we approach the constitucional phenomenon with a better understanding of the normative hierarchy, in order to: refute the thesis of anullability of constitucional norms, which are always null and void, explaining the relation validity applicability with regard to the tension legal safety - constitucional Supremacy; highlight the necessary interpretation of the whole legal order in accordance with the Constitution; and point to the existence of structural, logical and aziological hierarchy between constitucional norms
- Data da defesa: 13.04.2005
ABNTPÉREZ, Diego Selhane; ALMEIDA, Fernanda Dias Menezes de. Constituição e hierarquia normativa. 2005.Universidade de São Paulo, São Paulo, 2005.
APAPérez, D. S., & Almeida, F. D. M. de. (2005). Constituição e hierarquia normativa. Universidade de São Paulo, São Paulo.
NLMPérez DS, Almeida FDM de. Constituição e hierarquia normativa. 2005 ;
VancouverPérez DS, Almeida FDM de. Constituição e hierarquia normativa. 2005 ;
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