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Bridging Past and Future:Transformative Constitutionalism and Directive Constitutions Amidst Authoritarian Challenges

Title / Series / Name
Verfassung und Recht in Übersee (VRÜ)
Publication Volume
56
Publication Issue
3
Pages
Author
Cesario Alvim Gomes, Juliana
Editors
Keywords
Brazilian Constitutionalism
Directive Constitution
Transformative Constitutionalism
Law
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Gomes-Juliana-Cesario-Alvim_2023.pdf
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URI
https://hdl.handle.net/20.500.14018/27884
Abstract
This article examines the intricate interplay between Transformative Constitutionalism, Directive Constitutions, and the erosion of constitutional values amid incremental authoritarian challenges, using Brazil as a case study. It explores a scenario in which a constitution, initially designed for progressive change, transforms into a shield against retrogression, challenging the conventional definition of Transformative Constitutionalism and Directive Constitutions as forward-oriented models of constitutionalism and constitutions. Focusing on the right to health within Brazil's 1988 Constitution, celebrated as a transformative cornerstone of the constitutional project, the study scrutinizes its trajectory under democratic periods and recent challenges from Jair Bolsonaro's presidency and the COVID-19 pandemic. The case study illustrates how an incremental transformative process faces setbacks, risking becoming a relic of the past. However, it can adapt by being mobilized as a preservative force, actively countering anti-rights initiatives. In these circumstances, it transforms into a resilient entity dedicated to safeguarding the principles it was originally designed to uphold. The study underscores the dynamic nature of constitutional projects and their potential for mobilization with reversed meanings, emphasizing the need for a nuanced understanding of the temporal axis in transformative constitutionalism and directive constitutions.
Topic
Publisher
Place of Publication
Type
Journal article
Date
2023
Language
ISBN
Identifiers
10.5771/0506-7286-2023-3-587
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Collections
Legal Studies
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