INFORMAL
CHANGES
in
CONSTITUTIONAL
LAW
Principal Investigator (PI):
Professor Doutor Jorge Miranda
Instituto de Ciências Jurídico-Políticas
Faculdade de Direito
Universidade de Lisboa
Tlf: 217 820 265
Email: [email protected]
General Coordinator:
Professor Doutor Carlos Blanco de Morais
Application Instructor:
Dr. Guilherme Marques Pedro
Tlf: 966 839 569
E-mail: [email protected]
Lisbon, April 2012
Table of Contents
1. Project Identification………..…………………………………………………….3
2. Involved Institutions…………..….…………………………………..…………...4
3. Participant Researchers & Consultants…………………………………………....7
4. Scientific Component
4.1. Summary..……….……….……………………………………………..11
4.2. Technical Description
3.2.1. Literature Review.....……………………………………………..13
3.2.2. Plan & Methods……………………………………………….....15
3.2.3. Description of the Management Structure……………………….18
3.2.4. Bibliographic References………………………………………...19
2
1. Identificação do projeto
1. Project description
Domínio Científico
Scientific Domain
Ciências Sociais e Humanidades
Área científica principal
Main Area
Instituições, Valores, Crenças e Comportamento - Ciências Jurídicas
Acrónimo
Acronym
MIC
Título do projeto (em português)
As Mutações Informais da Constituição (PT)
Informal Changes in Constitutional Law (ENG)
Data de início do projeto
Starting date
02-01-2013
Duração do projeto em meses
Duration in months
24
2. Instituições envolvidas
2. Institutions and their roles
Instituição Proponente
Principal Contractor
Instituto de Ciências Jurídico-Políticas (ICJP)
Instituto de Ciências Jurídico-Políticas, Faculdade de Direito da Universidade de
Lisboa, Alameda da Universidade
1649-014Lisboa
3
The ICJP is a major research Institute located in the most reputed and highly regarded
Faculty of Law in Portugal, the Faculdade de Direito da Universidade de Lisboa. It is
composed of 28 postdoctoral Researchers and Professors and 21 doctoral and master
students who perform teaching assistance and are part of the Political Sciences Group
of the same Faculty. Founded in 2003, the ICJP has distinguished itself in the national
and international academic landscape for the quality of its research output as well as
for its highly regarded educational profile at both graduate and postgraduate levels.
The ICJP is the major national venue of academic conferences and scientific seminars,
hosting some of the finest degree programs and teaching initiatives in the field of
Public Law and boosting the international profile and academic projection of its
associates. Among other areas of teaching and research, the Institute is especially
devoted to the fields of Constitutional Law, Political Science, European Law, Municipal
Law, Legistics and Legislative Studies, Communication Law, Telecommunications Law,
Rights of Disabled Persons, Cultural Patrimony Law, Administrative Law,
Environmental Law and Energy Law. The high public profile of the Institute‟s activities
has made possible several partnerships with Government agencies and with other
public and private institutions. The ICJP is also involved in several other protocols and
agreements with foreign universities and institutes abroad.
Instituições Participantes
Participating Institutions
Universidade de Brasília (UNB)
SQN 205, Bloco C, APt. 601. Asa Norte.
70843 -Brasilia
The Faculty of Law of the University of Brasilia (FDUnB) was founded in 1994. It
emphasises practical legal problem-solving in social and economic context and the
development of advocacy abilities and legal skills while understanding their
connections to the theory and history of law. It strives to graduate professionals with
respect for social and ethical responsibilities.
Governance in public and private spheres is the common element in the three main
areas of strength of the Faculty are Corporate and Commercial Law, Revenue Law,
International Private Law, International Public Law, Constitutional Law, Political
Science, Administrative Law, Criminal Law and Environmental Law. It pursues
excellence in research and publication in these areas of strength. Over half the
academic staff of the Faculty have achieved Doctor of Philosophy qualifications in their
fields and, through our commitment to professional development, all of the academic
staff have Doctoral qualifications. The Faculty of Law of the University of Brasilia is
becoming a research intensive law school, seeking to promote its internationalization
by articulating with various Law faculties all around the world and especially in
Portugal, Spain and the rest of Europe and South America.
Universidade de São Paulo (USP)
Rua da Reitoria, 109, Cidade Universitária
CEP S. Paulo
The Faculty of Law of the University of São Paulo is the biggest of its kind in South
America. It ranks amongst the top law faculties in the world and is the most soughtafter law faculties in Brazil and South America by students and prospective employers.
4
The Faculty is home to 60 dedicated full-time academics, half of which have doctoral
degrees in various fields of law. These academics are supported by highly motivated
administrative and support staff. Together they serve the student community and the
public at large. The academic staff of the Faculty has contributed significantly to the
development of various fields of law over the years and is responsible for a substantial
number of textbooks that cover a wide range of topics. It is imperative that the
members of the Faculty continue to contribute to legal scholarship - also by assisting in
the development of emerging areas of the law. Leading international academics visit
this Faculty regularly for research or teaching purposes and, in turn, the Faculty‟s
academics visit foreign universities. In particular, the Faculty maintains a strong focus
on South America and has created an established network with several universities on
the continent and with Portugal and Southern Europe. Each member of the Faculty of
Law has the responsibility to further the interests of the Faculty by contributing to the
development of the legal minds and researchers of tomorrow and by promoting a sense
of social responsibility.
University of Bologna, Department of Political Science (UniBo)
Strada Maggiore 45
40125Bologna
The Department of Political Science was created in 1986 and it is currently directed by
Professor Francesca Zannotti. Since its foundation, two main streams of research have
been represented in the department: the comparative study of political institutions,
and the study of organizational behavior and public policy. The Department of Political
Science collaborates with the University of Florence and other universities in
supporting the most highly regarded PhD program in political science in Italy.
Currently, the Department of Political Science promotes research in four main areas:
Organizational behavior (public and private organizations) Public policy analysis
Democratic institutions (including transition to democracy particularly in Latin
America), Comparative analysis of legal systems in contemporary democracies. In
addition, there are three Research Centres which are active within the Department of
Political Science. The Centre for the Study of Judicial Institutions (Centro Studi
Ricerche sull´Ordinamento Giudiziario – CeSROG). The Centre for Public Policy
Analysis (Centro di Analisi delle Politiche Pubbliche – CAPP). The European Centre for
the Study of Democratisation (Centro Europeo Studi sulla Democratizzazione –
CESDE).
University of Salento (USAL)
Piazza Tancredi, n.7 - 73100 - P.IVA 00646640755 - C.F. 80008870752
73100Leece
The Facoltà di Scienze Sociali, Politiche e del Territorio of the Università del Salento is
committed to a culture of excellence in research and internationalization of its scholars
and students, with a special focus on Public Law and Political Science. All of its efforts
are directed towards the improvement of its educational programs which are sustained
by very high profile research activity, some of them internationally recognized for their
excellence. Its laboratories and research centres are ideal places for the research staff.
Its research staff comprises scholars from all over the world who are passionate about
their research. Another priority of this new administration is, in fact,
internationalization. As a major research centre in the field we offer opportunities to
5
conduct research in a stimulating environment on an intellectual and cultural level,
where scholars from different backgrounds can exchange ideas and projects. This is
essential for the individual growth of the students and professors. The Faculty offers
top-ranking First and Second Level Master Degree programs and PhDs, which have
will satisfy work market needs and research demands. The Università del Salento has
embraced the challenge of change, which places students at the centre of its choices so
they can build a real future as a professional based on values that can not be denied:
knowledge, competence, and merit.
Unidade de Investigação
Research Unit
Instituto de Ciências Jurídico-Políticas (ICJP)
Instituto de Ciências Jurídico-Políticas, Faculdade de Direito da Universidade de
Lisboa, Alameda da Universidade
1649-014Lisboa
Instituição de Acolhimento
Host Institution
Faculdade de Direito da Universidade de Lisboa (FD/UL)
Alameda da Universidade
1649-014Lisboa
6
2. Investigadores e Consultores
2. Researchers and Consultants
Investigador Responsável (IR)
Principal Investigator (PI)
JORGE MIRANDA
Professor Doutor Jorge Miranda is the Principal Investigator of this research project
and its leading figure, determining its overall research trajectory and methodological
strategy. He is currently the President of the Principal Contractor of the project, the
Instituto de Ciências Jurídico-Políticas of the Faculty of Law of the University of Lisbon
(FD-UL) where he holds a personal chair, having held several leading positions within
the Faculty and the University. He is also a Professor at the Portuguese Catholic
University. He is a worldly renown constitutionalist and legal scholar, having published
numerous books in the field of Constitutional and Comparative Law which have been
translated into several languages.
Coordenador Geral e Investigador
General Coordinator & Researcher
CARLOS BLANCO DE MORAIS
Professor Doutor Carlos Blanco de Morais is the General Coordinator of the research
project and the main responsible for both the initial funding application procedure and
the articulation between the various researchers and consultants who are part of the
research team throughout the project. He is the Vice-President of the Instituto de
Ciências Jurídico-Políticas of the Faculty of Law of the University of Lisbon (FD-UL)
where he teaches as Associate Professor. Professor Blanco de Morais will be mediating
between the coordinators of each task and the Principal Investigator. Most of the
research assessments and reports produced by the researchers, as well as the decisions
and directives adopted by the PI must pass through him to guarantee the unity and
information access that the research strategy of the project demands amongst all
participants.
Investigadores
Researchers
GILMAR MENDES
Professor Gilmar Mendes is the late President of the Supreme Federal Tribunal in
Brazil (STF) and is now the minister of the same institution. He has founded the
prestigious Brazilian Instituto de Direito Público (IDP) and currently teaches at the
Faculty of Law of the University of Brazilia (FDUB).
MICHELE CARDUCCI
Professor Michele Carducci holds a personal Chair in the field of Comparative
Constitutional Law of the Department of Political Science of the University of Salento
and he is among the most renown European legal scholars in the field, having taught at
various Italian, European, Brazilian and American universities and institutes.
7
MARIA LUÍSA DUARTE
Professor Maria Luísa Duarte is one of the top national experts in the field of European
Law and legal and Constitutional studies in Portugal. Her work on the impact of
European Law upon the Portuguese Constitution has received wide praise in
Portuguese academia, and she is known for her devotion to teaching and for her highrated publishing record in the field of European Law.
FRANCISCO FERNANDEZ SEGADO
Professor Francisco Segado‟s is one of the most renown experts in Constitutional Law
in Spain. Having now retired from his Professorial Chair at the University of Cartagena
he has recently become the Constitutional Law Professor of the prestigious Faculty of
Law of the Universidad Complutense de Madrid, having been Visiting Professor and
received the Honoris Causa Doctorate from various universities in Italy and South
America.
LÚCIA AMARAL
Professor Lúcia Amaral holds a Professorial Chair at the School of Law of the New
University of Lisbon. She is a highly regarded Judge at the Portuguese Constitutional
Court following her election by the Portuguese Parliament and she was the prestigious
Gulbenkian Fellow in International and Comparative at the Max-Planck Institute in
Heidelberg.
MIGUEL NOGUEIRA DE BRITO
Professor Miguel Nogueira de Brito‟s work in legal philosophy, political theory and
constitutional law is widely read in Portugal and Brazil. He is Auxiliar Professor at the
Faculty of Law of the University of Lisbon, where he spent most of his career as a young
student, researcher and teacher. He is one of the most renown experts in legal and
constitutional studies in Portugal having spent part of his career in legal practice as
well, both as a lawyer and working for the Portuguese Constitutional Court.
LUÍS PEREIRA COUTINHO
Professor Luís Pereira Coutinho is Auxiliar Professor at the Faculty of Law of the
University of Lisbon having also taught at the New University of Lisbon. He is an expert
on the philosophical and ethical foundations of the Portuguese Constitution, having
published one of the most read books on the topic. He is also known for his incursions
into political theory and, more recently, by his interest in international relations theory
and the theoretical foundations of international law.
MARIANA MELO EGÍDIO
Mariana Melo Egidio is a lawyer and a PhD candidate at the Faculty of Law of the
University of Lisbon, where she is developing her thesis in the field of Constitutional
Law. She has received numerous prizes and several awards for her research and essays
and is one of the most promising young researcher at the Faculty.
PEDRO LOMBA
Pedro Lomba is a PhD candidate at the Faculty of Law of the University of Lisbon and
Assistant Professor at the same faculty. He is a research associate at the European
University Institute (EUI), was a visiting researcher of the Faculty of Law in Yale and is
8
currently a visiting researcher at the University of Oxford. He has taught in the fields of
Constitutional law, Political Science, International Law and European Law, having
published widely in these fields.
JOSÉ LEVI JUNIOR
Professor José Levi Júnior is Professor of Constitutional Law at the Faculty of Law of
the University of S. Paulo, which is the greatest law faculty in South America. He is a
special attorney at the Brazilian National Treasury and a reputed member of the
Instituto Pimenta Bueno, having authored and co-authored several books in
Constitutional Law. His interests range from the separation of powers to the control of
constitutionality by the Brazilian Constitutional Court (STF).
LÚCIO PEGORARO
Lucio Pegoraro is Full Professor of comparative public law at the Law Faculty of the
University of Bologna and profesor afiliado in the Universidad Autónoma de Nuevo
León. He has authored numerous books in Italian and comparative public law. His
other writings focus mainly on regional and local government law. The latter were
published in various countries and in several languages. He is a member of the
Association of the Comparative Public and European Law and a corresponding member
of the Asociación Peruana de Derecho Constitucional and of the Asociación Argentina
de Derecho Constitucional. He was awarded the Laurea Honoris Causa at the
University of Cajamarca.
ELIVAL DA SILVA RAMOS
Professor Elival da Silva Ramos is the General Attorney of the State of S. Paulo and
Professor of Administrative and Constitutional Law at the Faculty of Law of the
University of S. Paulo and teaches at the College of the Brazilian Public Department, at
the Judiciary School of S. Paulo, at the College of Constitutional Law (ESDC). His
research focuses mainly on the efficacy of Constitutional norms and the control of
constitutionality with an emphasis on the Brazilian System.
ANDRÉ RAMOS TAVARES
Professor André Ramos Tavares is Professor at the Faculty of Law of the University of
S. Paulo, Professor at the Doctoral Program of the University of Bari in Italy and the
Pro-Rector of the Pontifícia Universidade Católica de S. Paulo. He is the editor of
several academic journals in Brazil in Constitutional Law and has authored, coauthored and edited several books in the field and has held several visiting positions in
the United States.
TIAGO FIDALGO DE FREITAS
Fidalgo de Freitas is currently a PhD candidate at the Department of Law of the
European University Institute in Florence (IUE), where he is developing a thesis on the
constitutional adjudication of welfare rights. He holds an LLM from the New York
University School of Law, with an undergraduate degree from the Faculty of Law of
the University of Lisbon.
FERNANDO DIAS MENEZES DE ALMEIDA
Professor Menezes de Almeida is Associate Professor at the Faculty of Law of the
University of S. Paulo in the fields of Administrative Law and Constitutional Law. He
9
has taught at Universidade S. Judas Tadeu (USJT) and at the Université Jean Moulin
de Lion 3. His research interests fall within the study of federalism and of the combined
impact of the Romanic and Anglo-American systems upon Brazilian administrative law,
having published widely on the topic.
Consultores
Consultants
MANOEL GONÇALVES FERREIRA FILHO
Professor Ferreira Filho is the current President of the Instituto Pimenta Bueno and a
member of the Academia Brasileira de Letras Jurídicas. He has one of the top experts
in Constitutional Law in Brazil for decades and has recently been appointed Emeritus
Professor of the Faculty of Law of the University of S. Paulo. He has been a Visiting
Professor at the Faculty of Law of the University of Aix-en-Provence in France. Among
other several positions of public note, he has been a Vice-Governor and the Chief of
Staff and Secretary-General of the Brazilian Ministry of Justice, as well as its temporary
acting Minister. He has published widely in Constitutional Law and Political Science.
Apart from all the honorary awards, prizes and medals, he has been granted the
Honoris Causa Doctorate from the Faculty of Law of the University of Lisbon.
MASSIMO LUCIANI
Professor Massimo Luciani holds a Professorial Chair in Constitutional Law at the
Facoltá di Giurisprudenza of the University of Rome “La Sapienza”, having taught
other related subjects in several other Italian universities. He has been appointed
Visiting Researcher at Johns Hopkins University in Baltimore. He is a very prestigious
public lawyer and one of the most regarded Italian constitutionalists, having published
a vast amount of work which has carried great impact upon Italian Constitutional Law.
MARCELO REBELO DE SOUSA
Professor Marcelo Rebelo de Sousa holds a Professorial Chair at the Faculty of Law of
the University of Lisbon and at the Faculty of Law of Catholic University. He was a
minster and a Member of Parliament, a former journalist and is currently a political
analyst, a pundit and one of the most acclaimed public intellectuals in Portugal. He has
published several books in the fields of law and politics and has, in the past, been a
member of the State Council, among several other positions of public recognition.
MARSHAL BREGER
Marshall J. Breger is a professor of law at the Columbus School of Law, The Catholic
University of America. He has been a senior fellow at the Heritage Foundation,
Washington, D.C. During the Bush Administration he served as Solicitor of Labor, the
chief lawyer of the Labor Department. By presidential designation he served
concurrently as Acting Assistant Secretary for Labor Management Standards. He has
also been the chairman of the Administrative Conference of the United States, an
independent federal agency and has served as alternate delegate of the U.S. to the U.N.
Human Rights Commission in Geneva.
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3. Componente Científica
3. Scientific Component
3.1. Sumário
3.1 Abstract
O objectivo central deste projecto de investigação consiste no estudo das implicações
sócio-políticas, bem como das consequências históricas, das transformações e mutações
que ocorrem na Constituição de estados soberanos com relevante impacto no
funcionamento das respectivas comunidades políticas.
A Constituição é normalmente descrita como a Lei suprema destes estados, tendo como
fins últimos o estabelecimento de princípios e de regras que regulam o poder político
bem como os direitos e garantias fundamentais dos cidadãos. Na visão de muitos
constitucionalistas e juristas, a aprovação da Constituição simboliza a mais alta
manifestação de Soberania de um povo e da sua unidade política. Ao estabelecer as
“regras do jogo” de um dado sistema político, esta Lei suprema requer, na maioria dos
casos, uma certa estabilidade ao longo do tempo. A sua modificação formal opera
através processos especiais e solenes que exigem uma revisão constitucional. Por sua
vez, esta requer um vasto consenso entre as forças políticas traduzido na aprovação
parlamentar das alterações por maioria qualificada.
Contudo, assiste-se nos dias que correm à percepção de que diversas alterações da
Constituição defluem à margem daqueles processos formais de revisão e cujas
consequências carecem de um estudo aprofundado. Estas mutações, ditas informais ou
tácitas, operam por vários meios: ora através da interpretação dos tribunais
constitucionais; ora através da prática e do costume; ora ainda através do influxo do
direito Europeu sobre o direito nacional. Estes processos transportam consigo
mudanças que reconfiguram as formas pelas quais as normas constitucionais são
interpretadas e aplicadas, conduzindo à perda de normatividade ou de obrigatoriedade
de alguns dos seus preceitos – donde a sua caracterização como informais ou tácitas.
O que nos inquieta enquanto juristas, professores ou investigadores é o facto destas
mutações constitucionais serem tão frequentes e ao mesmo tempo tão pouco estudadas
no meio legal e académico contemporâneo e sobretudo em Portugal. Esta matéria
impende directamente sobre algumas das questões mais prementes da actualidade – e
nomeadamente aquela de se saber qual o papel do Tribunal Constitucional no balanço
de poder interinstitucional do Estado e na qualificação deste tipo de mutações.
Independentemente da dimensão deste desafio, é hoje imperativo desenvolver esta
trajectória de investigação e projectá-la para além do que os especialistas foram até
agora capaz de produzir a nível nacional e até a nível comparativo e internacional. O
objectivo central deste projecto é pois o de analisar em detalhe aquelas situações
problemáticas que derivam das mutações informais da Constituição, de modo a
estabelecer limites à sua validade legal e legitimidade jurídica.
Com este propósito em vista, o presente projecto reúne uma prestigiada equipa de
constitucionalistas e investigadores nacionais e internacionais que irão desenvolver
uma agenda de investigação capaz de se constituir como um marco para o futuro do
debate, da pesquisa e da prática legal neste âmbito. Com este fim em vista, o presente
projecto visa constituir-se como pioneiro de uma plataforma de investigação que
servirá de base à concepção de instrumentos conceptuais, de estratégias metodológicas
e de trajectórias teóricas gerais, que consigam dar corpo a um campo do Direito
Constitucional e da Ciência Política exclusivamente focado, ainda que em articulação
11
com outras áreas, na questão das mutações informais à Constituição, da sua legalidade,
vinculatividade e eficácia jurídica, mobilizando para tal as sinergias nacionais e
internacionais necessárias. Este será portanto um projecto pensado de raiz, cuja
novidade e solidez deriva da combinação de esforços entre académicos em várias fases
do seu percurso intelectual e de carreira, associando a energia e espírito criativo de uns
à experiência e prestígio de outros.
O intercâmbio e a mobilidade promovidos pelo Instituto de Ciências Jurídico-Políticas
(ICJP) da Faculdade de Direito da Universidade de Lisboa (FD-UL), e com o qual este
projecto se compromete por inteiro, constituem a prova derradeira da incorporação
interdisciplinar e inter-paradigmática de várias abordagens a esta problemática,
garantindo a sustentabilidade e a flexibilidade que a excelência académica e o rigor
científico do projecto requerem. Esta iniciativa poderá assim contribuir para o
desenvolvimento de abordagens transdisciplinares ao Direito Constitucional e Direito
Público Comparado em Portugal, contribuindo assim para a projecção internacional da
Faculdade de Direito da Universidade de Lisboa enquanto um pólo de investigação
capaz de combinar prestígio e abertura, teoria e prática, passado e futuro.
3.1.b Em inglês
3.1.b In English
The central aim of this research project is to account for the socio-political implications,
as well as the historical renditions, of the transformations and changes that occur to the
constitutional law of those sovereign states where written constitutions assume the
central role of a supreme law, and can thus be said to carry a direct impact upon the
internal functioning of the political community.
The constitution of sovereign states is usually described as their supreme law, the
major aim of which is to establish the principles and coordinates by which
governmental institutions and political power are regulated, and to set out the
fundamental rights of citizens. According to many constitutionalists and jurists, the
approval of a Constitution represents the highest manifestation of the Sovereignty of a
People and of its political unity. Laying out the “rules of the game” of a given political
system, this supreme law requires, in most cases, a high degree of stability overtime. Its
formal modification thus operates through special official processes which usually
demand a constitutional revision. In turn, such revisions call for an overarching
consensus among all political parties and, in most cases, involve qualified majorities for
their approval.
Notwithstanding there has been a growing awareness of informal changes to the
Constitution which occur at the margin of such formal processes of revision and that
carry consequences that remain unaccounted for. These informal changes happen
through various means: by means of court interpretation; through custom and political
practice; or, for example, via the influx of supranational law of the European Union.
These processes yield specific changes which reframe the ways in which constitutional
norms can be read and applied, often leading to the loss of legal validity or lawabidingness of some its precepts – hence their qualification as “informal” or “tacit”
changes to constitutional law.
What strikes us as the most demanding challenge in today‟s legal and academic
landscape is the fact that informal changes to the Constitution are as frequent as they
are lacking any debate, especially in Portuguese Law. Irrespective of the dimension of
such challenge, it is one we consider worth pursuing further than what the legal and
academic expertise on the matter has so far been able to. Therefore, the central aim of
12
this research is to analyze in detail the problematic situations which follow from
informal changes to the constitution and to set the limits of its political and legal
acceptability.
With that general purpose in mind, this project gathers a prestigious team of national
and international legal scholars and constitutionalists who will set up a research agenda
which will impact directly, and for many years to come, on the academic debates, as
well as on the social realities and political decisions revolving around the theme of
informal changes to constitutional law. In view of this, the project introduced below
pioneers the establishment of a research framework capable of developing the
conceptual tools and the theoretical trajectories required for setting the limits of the
political legitimacy and legal validity of informal changes to constitutional law. It hence
purports to initiate the construction of a wide institutional network that can sustain the
study, and overall supervision, of informal changes to Constitutional Law.
The academic exchange and mobility which the Instituto de Ciências Jurídico-Polítcas
(ICJP) at the Faculty of Law of the Universidade de Lisboa (FD-UL) promotes, and to
which this project is committed, will attest to the scope and variety of approaches to the
problematic which we laid out above, thus providing the sustainability and expert
assistance that its scientific excellence and conceptual rigor demand. This project will
contribute to the reputation of transdisciplinary approaches to Public and Comparative
Law in Portugal and contribute to the international projection of the Faculty of Law of
the University of Lisbon as a solid and research cluster in the field.
3.2. Descrição Técnica
3.2 Technical Description
3.2.1. Revisão da Literatura
3.2.1. Literature Review
In the context of the research activity developed heretofore by our researchers, the
question of informal changes has been approached from several angles but never with
the satisfying degree of theoretical focus or of epistemological exclusivity which the
present project entertains and which actually constitutes one of its novel and original
elements [Pegoraro 1994: 705-742; Mendes 2004: 149-155]. Indeed, the same can be
said about the vast literature on the topic, which, as we conclude from the reading of
Bruce Ackerman, Edward Corwin and Lawrence Tribe, has always approached this
topic by reference to other themes deemed more central [Ackerman 1991: 57, 247, 309;
Corwin 1999: 1-20; Tribe 2000: 47-110].
Jorge Miranda (PI) addresses the theme by systematizing previous enquiries into the
causality of such phenomenon in several political systems. He suggests that informal
changes ought to fall within the general category of indirect revision, but stops short of
anticipating the consequences of this theoretical move [Miranda 2007: 168-174].
Moreover, he analyses the role of jurisprudence and of custom as sources of change of
the constitutional norms, adopting an ambiguous stance towards contra legem
practices, claiming that as unconstitutional as such praxis might be, it remains an
important reason for the obsolescence or uselessness of rules, following in this regard
Paulo Otero‟s accurate and timely description of a „non-official normativity‟ [Miranda
2012: 419-422]. But in spite of Miranda‟s laudable capacity of systematization, his is
still an endeavor which lacks the historical and detailed analysis of informal
constitutional changes which the current project proposes [see Canotilho 2003: Intro;
13
Otero 2010].
On a more detailed level of analysis, and linking the questions of the meaning of
constitutional powers and of revisionist authority with that of constitutional change,
Nogueira de Brito and Pereira Coutinho provide enlightening insights into the different
dynamics of informal constitutional changes in Europe and the United States [2000 &
2009 respectively]. Theirs is a strong attempt to establish the basis of a theoretical and
scientific leap ahead in the philosophical and ethical enquiry into the foundations and
criteria of acceptability and legitimacy of informal changes to Constitutional Law in the
West.
Pereira Coutinho develops a detailed method of analysis of informal changes to the
Constitution where he emphasizes the theme of constitutional dynamism and the need
to analyze it in parallel with the amendments and in constant reference to them
[Pereira Coutinho 2009: 377-484]. In turn, Nogueira de Brito innovatively tackles the
problematic of informal change in the specific and very interesting context of the
constitutional abidingness of future generations, systematizing the material limits to
constitutional change and establishing provisional limits to a constitutive power
potentially tameless [Nogueira de Brito 2000: 382].
The writings of Blanco de Morais, Luísa Duarte and Lúcia Amaral are also
indispensable references as far as the central theme of this research is concerned
[2008, 2010 & 2011; 1997; and 1984, 2005, 2005.b, 2006 & 2006.b respectively].
Blanco de Morais deals specifically with the theme of additive sentences which result in
the creation of new norms by jurisprudential means [Blanco de Morais 2011: 411-474,
791]. In this context, he addresses the curious case of so-called “constitutional revision
sentences” in Italy and Brasil – two countries to which this project pays special
attention [Blanco de Morais 2011: 791]. In his view, the history of informal
constitutional changes can also be assessed negatively, that is, by looking at how the
monitoring and scrutiny of “unconstitutionality by omission” has evolved in Brazil,
directly affecting the ways through which powers balance and oversee one another
[Blanco de Morais 2011: 507-526].
On this topic, Lúcia Amaral has published extensively on the sources of informal
change; the nature of revisionist powers, their legitimacy and scope; and on the
question as to whether the frequency and impact of informal changes to the
Constitution actually translate into weak constitutional regimes leading to the overall
disavowal of constitutionalism as the theoretical and legal bulwark of democracy, of the
rule of law and of state sovereignty [Amaral 1984: 320-360; 2005: chapters I & II;
2006 & 2006: 154-158].
Paying specific attention to the problem of the autonomy of national Constitutional
Law in an enlarged political community such as the European Union, Luísa Duarte has
looked at how European legislation is incorporated in the national jurisprudence of
national constitutions [Blanco de Morais 2008 and Luísa Duarte 2006]. In this regard
she follows Francisco Segado's famous research laid out in his classic study about the
Spanish Constitution in the context of European Constitutionality [Segado 2003].
Indeed, the foreign members of this research team have contributed immensely to the
discussion revolving around related themes. In Italy, Michelle Carducci provides a yet
partial summary of all interpretative theories and transformative sentencing in the
Italian and foreign systems [Carducci 2011: 1075-1095]. And Massimo Luciani sets the
opposing fields of the debate about the legitimacy and the reality of informal
constitutional change in terms of a divide between „irenic‟ and „polemic‟
constitutionalisms, placing appeasing and reconcilable approaches against those who
14
place informal change at the forefront of the disciplinary debates in public law and
political science [Luciani 2006: 1664-1669].
In Brazil, Candida Ferraz has made her mark on the study of the subect, as has the
world-renown work of Gilmar Mendes who pioneered the study of the theme of the
control of constitutionality by the Senate [Ferraz 1986; Mendes 2004: 149-168]. Elival
da Silva Ramos questions the legitimacy of many of constitutional changes and of the
usurpation of powers by constitutional courts – what Silva Ramos refers to as “Judicial
Activism” [Ramos 2010: 117]. But their research is still calling for the sort of historical
and international comparison which this project develops with the Portuguese and the
Italian cases, lacking an informed view of how informal change actually poses a
challenge to constitutional regimes apart from the Brazilian.
3.2.2. Plano e Métodos
3.2.2. Plan and Methods
Following the literature review provided in the above section we will now proceed to
develop a thorough description of the research plan and of the methodology to be
employed. As stated earlier on, this research has as its core idea or problematic a
specific phenomena which has recently been on the agenda of various western
Constitutional states: the idea that there are informal changes to the Constitution
which are yet to be properly subjected to careful scientific and legal scrutiny and hence
can be considered a “black hole” in contemporary legal studies both in Portugal and in
Western academia more broadly.
This project thus asks if the supreme law which regulates the internal functioning of a
state, and of the political community generally understood, can change its content and
substance in significant and profound ways without the agreement or acceptance of the
citizens who are the legitimate bearers of public authority and political sovereignty [see
Dicey 2005, Intro; Smend 1985: 165]. More to the point, does this move mean that
Constitution Law can actually change “silently” and in ways unpredicted by the
Constitution itself – creating the material and social conditions for the emergence of a
“parallel Constitution” or of what some have described as the “transfiguration” of the
Constitution? [see Hesse 2009: 147; Haberle 1997: 153].
One could argue that these questions beg the straightforward answer, given the fact
that there are constitutional courts that operate a system of control of constitutionality,
hence providing the necessary reassurance that all norms obey a generally fixed
constitutional procedure and fall within a strictly defined commitment to the
constitution [see Boyd White 1985; Hummel 2002: Intro; Caldwell 1997 1-12; 120-145].
However, this is hardly as simple as it looks. In the view endorsed by our research
team, there are at least two possible research trajectories associated with three key
arguments which will definitely leave their mark in contemporary debates and
literature on the topic and will hence achieve the goals set out by this project.
Firstly, a great deal of these informal changes is played out by constitutional courts and
tribunals. Under the pretext of a scrupulous interpretation of the Constitution, or in
claiming that there are significant omissions and obvious lacunae in the Constitution,
these courts end up creating new norms which in turn mould, condition and often
compromise the juridical efficiency of the existing ones. In this context, it is of import
to refer to a couple of historical cases which clearly elucidates this conundrum. When
the sentence No. 16 of 1978 of the Italian Constitutional Court fixed new rules of
acceptability for the legality of the referendum, it actually materially altered the
Constitution. In Brazil, the famous 4277 Amendment (ADI) of May 2011, immediately
repealed an existing constitutional rule and replaced it by other built upon the
15
combination of principles. The obvious dilemma here is the (rather common one) of
knowing who guards the guardian. In one stroke, those positivist legalists and other
jurists who stand for the interpretative “self-restraint” of constitutional courts are
confronted with more progressive “activists” who vindicate new methods of
interpretation to be adopted by constitutional courts. Among the latter, so-called neoconstitutionalists even advocate for the need to allocate legislative powers to these
tribunals, turning the legitimacy of the interpretation into a “question of power”.
Secondly, the Court of Justice of the European Union (CVRIA) willingly interprets the
treaties in view of the presumed prevalence of all European Law over national
constitutions – see the Internationale Handelgellschaft among others). This naturally
leads to a generalized retreat in the application of several constitutional norms – and
eventually to their full inapplicability. Nevertheless, many constitutional courts have
reacted against this powerful trend of informal change, in Germany, France, Italy,
Poland, Cyprus and the Czech Republic. In 2009 the German constitutional court
issued a forthright judgment concerning the Lisbon Treaty, where it clearly stated the
limits to the force and prevalence of European Law over national Constitutional Law.
This necessarily begs the question as to what are the concrete terms and specific limits
within which supranational Law moves toward the transformation of national
Constitutions. It also raises the important issue of knowing who ultimately decides
about the constitutionality of a norm – a rather shady area where uncertainty seems to
prompt the call for an ultimate meta-legal authority which can either be unbounded by
any constitutional limitation, or become paralyzed by several contradictory ones.
This demonstrates that the theme of constitutional change is indeed as relevant and
lively in Portugal as in those countries where this project has been met with the support
and the enthusiasm of our partner institutions as well as of several experts and
researchers who have already signed up to its goals and aims. In the United States, the
public debate surrounding health care and reform („Medicare‟) has raised important
concerns about the boundaries between constitutional interpretation and amendment.
In the European Union, the theme of informal changes strikes at the heart of the
current impasse between the Court of Justice and constitutional courts, where the
presumed supremacy of European Law over the constitution of member states is at
stake. In countries like Brazil and Italy this issue is very much present, given the now
widely accepted understanding that the construction of Constitutional Law works
through courts‟ interpretations and actions. The question of informal changes in
Portugal directly affects the expiry of specific components of the Constitution,
challenged as they are by the powerful, albeit invisible, strength of European Law, its
reception and interpretation.
The theoretical pluralism of this project, as well as the diversity of academic
backgrounds which compose this team, finds in both its conceptual premises and its
research goals, an overarching and unifying horizon from which the methodological
criteria is derived, but which varies, notwithstanding, on account of the specificity of
each subtheme.
1. For instance, for an understanding of the origins of constitutional change – and the
development of a proper causal study of this phenomenon – a historical, sociological
and comparative analysis of it is required following the methodology outlined in
[Forbath 1999: 1917-1930; Les Benedict 1999: 2011-2038];
2. The approach to the specific factors of informal constitutional change, of its
foundations as well as of its normative manifestation, legal expression and political
impact, we will resort to a dogmatic construction;
16
3. For a specific observation of the of the changes derived from the uses and political
practices of power organs, we will develop several politological and institutional
approach, considering that constitutional change cannot be fully grasped within the
strict methods of constitutional law [Griffin 1996: 26-59; Glaessner & Reutter 2001: 928];
4. For the study of the hermeneutic conceptions which justify the interpretation and
creative integration of constitutional norms and of the scientific and dogmatic
understandings which stand against it, we will engage in a methodology of dialectic
interpretation, on the grounds that a clear concept of constitutional change
presupposes its delimitation from the concept of constitutional interpretation, such as
that expounded in [Bockenforde 1999: 153-156];
5. For the evaluation of the impact of European and supranational Law upon the
constitutional structure of member states and in order to account for the reaction of
several constitutional courts when faced with the need to replace constitutional norms
for European ones – as well as with the imposing role of the European Court of Justice
– we will engage in a politological and comparative analysis, as suggested in [Lutz] and
[Holmes & Sunstein in Levison 1995: 237-275];
6. Lastly, in order to establish the limits to the validity and political legitimacy of
informal changes to the Constitution, we will resort to the juridico-dogmatic method.
Only the combination and articulation of these subject-oriented approaches within the
pluri-methodological scheme which the many-faceted nature of informal changes to
Constitutional Law demands, can guarantee the pursuit of our concrete aims and the
sustainability of the project in all its scientific scope and ambition. For the remainder of
this research plan, we shall explain how this methodology will entail the achievement of
the expected results listed below:
a. It will endeavour to redefine the concept of Sovereignty which has been fraught with
semantic challenges – especially by the German Constitutional Court – which seem to
urge a new doctrinal articulation and from which new criteria of acceptability can be
drawn, most obviously in the case of the impact of European Law upon national
Constitutions;
b. It will assess the risks posed to democracy and to the guarantee of human rights by
certain informal changes to the constitution, seeking to anticipate the dangers of
constitutional “nominalization”;
c. Finally, and more importantly, our researchers will jointly seek to establish a clear
and justified border between formal and informal changes, that is between the validity
of informal changes and those which happen by means of constitutional revision,
defining the proper authority or authorities who have the final word on the definite
shape of the constitution.
On these grounds, this research represents the most interesting and solid attempt to
develop a dogmatic construction on which a proper understanding of the limits and of
the presuppositions of informal change can rest.
17
3.2.3. Estrutura de Gestão
3.2.3. Description of the Management Structure
The Principal Investigator (PI) will be assisted by a General Coordinator. It is the
responsibility of the PI and when necessary of the General Coordinator to oversee the
development of the project, guaranteeing the integral observance of rules and the
accomplishment of the tasks by the researchers within predetermined deadlines; to
shorten or extend these deadlines when necessary; to redesign or extend the scope of
each task; to determine the criteria according to which the contents of each task are set;
to redefine the methods and objectives initially established; to settle the disputes
between researchers; to organize meetings, roundtables, seminars and conferences
(and to accompany their realization); to ensure that the reports and all the scientific
output is timely delivered and the conclusions internally circulated; to correct possible
subjective, substantial or procedural dysfunctions; to ensure the final publication of the
project; and to promote the concession of scholarships to worthy applicants as well as
the mobility of researchers.
The Group of Coordinators will gather together all the task coordinators of the research
project. The Group of Coordinators will accompany the development of the project and
the compliment of deadlines, reporting directly to the PI. The PI will informally
articulate with the Group of Consultants and establish contacts with the consultants on
a trimestral basis via videoconference, email exchanges or addressing them directly
through extraordinary meetings whenever he finds it necessary. The pace of the
research activities as well as their output will be evaluated at the end of each task,
soliciting feedback on - and even potential corrections to - the substance of the work, its
general shape, or the method employed. Finally, the consultants will also advise the PI
regarding the overall quality of the project. The whole structure of the ICJP, as the
Proponent Institution, will ensure the provision of technical support and logistic
assistance required by the PI.
The ICJP will also open a separate bank account for the financial deposits which will
fund the research project. Accountancy services will be delegated to the chartered
accountant who is part of the Fiscal Council of ICJP and will be responsible for the
fiscal and financial supervision of the research project.
18
3.2.4. Referências Bibliográficas
3.3.4. Bibliographic References
Referência Ano
Reference Year
Miranda
2007
Ackerman
1991
Corwin
1999
Tribe
2000
Nogueira de
2000
Brito
Blanco de
2008
Morais
Blanco de
Morais
2010
Luísa
Duarte
1997
Amaral
2005
Amaral
1984
Amaral
2005
Amaral
2006
Ferraz
1986
Canotilho
2003
Otero
2010
Carducci
2011
Carducci
2009
Pegoraro
2009
Publicação
Publication
Miranda, Jorge. Manual de Direito Constitucional II,
Coimbra: Coimbra Editora, 2012
Ackerman, Bruce. We the People I: Foundations, Cambridge:
Harvard University Press, 1993
Corwin, Edward. The Doctrine of Judicial Review, New
Jersey: The Lawbook Exchange Ltd, 1999
Tribe, Lawrence. American Constitutional Law, New York:
Foundation Press, 2000
Nogueira de Brito, Miguel. A Constituição Constituinte,
Coimbra: Coimbra Editora, 2000
Blanco de Morais, Carlos. Curso de Direito Constitucional,
Coimbra: Coimbra Editores, 2008
Blanco de Morais, Carlos. A Sindicabilidade do Direito da
União Europeia pelo Tribunal Constitucional Português, in
AAVV, Estudos Sérvulo Correia, Coimbra: Coimbra Editora,
2010
Luísa Duarte, Maria. A teoria dos poderes implícitos e a
delimitação de competências entre a União Europeia e os
estados membros, Lisboa: Lex, 1997
Amaral, Lucia. A Forma da Republica, Coimbra: Coimbra
Editora, 2005
Amaral, Lucia. Poder Constituinte e Revisão Constitucional:
Algumas Notas sobre o fundamento e natureza do poder de
revisão constitucional, Revista da Faculdade de Direito da
Universidade de Lisboa. - ISSN 0870-3116. - V. 25, 1984
Amaral, Lucia. Problemas da "Judicial Review" em Portugal,
Themis, Ano VI, nº 10, 2005
Amaral, Lucia. Constitucionalismo Forte, Constitucionalismo
Debil, Anuário Português de Direito Constitucional, Vol.
V/2006, Coimbra: Coimbra Editora, 2006
Ferraz, Anna Cândida. Processos Informais de Mudança da
Constituição: Mutações Constitucionais e Mutações
Inconstitucionais. São Paulo: Max Limonad, 1986
Canotilho, Gomes. Direito Constitucional e Teoria da
Constituição, Coimbra: Coimbra Editores, 2003
Otero, Paulo. Direito Constitucional Português, Coimbra:
Coimbra Editores, 2003
Carducci, Michele. Tra Diritto costituzionale generale e
diritto costituzionale comune, in AAVV, Alle frontiere del
Diritto Costituzionale, Scritti in onore di Valerio Onida,
Milano: Giuffre, 2011.
Carducci, Michele. Revisione Tacita della Costituzione, in L.
Pegoraro, Glossario di diritto Pubblico Comparato, Roma:
Carocci Editore, 2009
Pegoraro, Lucio. Glossario di diritto Pubblico Comparato,
Roma: Carocci Editore, 2009
19
Pegoraro
1995
Pegoraro
1994
Ramos
2010
Luisa
Duarte
2006
Griffin
1996
Glaessner
2001
Forbath
1999
Les Benedict 1999
Bockenforde 1999
Sunstein
1995
Miranda
2012
Blanco de
Morais
2011
Segado
2009
Mendes
2004
Pereira
Coutinho
2009
Pegoraro, Lucio; Morbidelli, G.; Reposo, A.; Volpi, M.;
Diritto Costituzionale italino e comparato, Bologna;
Monduzzi, 1995
Pegoraro, Lucio. La tutela della certeza giuridica in alcune
costituzioni contemporane, in Diritto e Societa, 1994
Ramos, Elival. Ativismo Judicial. Sao Paulo, 2010
Luisa Duarte, Maria. A união europeia e a Jurisprudência
constitucional dos estados-membros, Lisboa: Associação
Académica da Faculdade de Direito de Lisboa, 2006.
Griffin, Stephan. American Constitutionalism – From Theory
to Politics, Princeton University Press, Princeton, 1996
Glaessner, Gert-Joachim. Verfassung, Politik und
Politikwissenshaft, in Gert-Joachim Glaessner et al.,
Verfassungspolitik und Verfassungswandel, Westdeutscher
Verlag, Wiesbaden, 2001
Forbath, William. Constitutional Change and the Politics of
History, Yale Law Journal, volume 108, 1999
Les Benedict, Michael. Constitutional History and
Constitutional Theory: Reflections on Ackerman,
Reconstruction, and the Transformation of the American
Constitution, vol. 108, 1999
Bockenforde, Ernst-Wolfgang. Anmerkungen zur Begriff
Verfassungswandel, in idem, Staat, Nation, Europa: Studien
zur Staatslehre, Verfassungstheorie und Rechtsphilosophie,
Suhrkamp Verlag, Frankfurt am Main, 1999
The Politics of Constitutional Revision in Eastern Europe, in
Sanford Levison, editor, Responding to Imperfection: The
Theory and Practice of Constitutional Amendment, New
Jersey: Princeton University Press, 1995
Miranda, Jorge. Manual de Direito Constitucional I,
Coimbra: Coimbra Editora, 2012
Blanco de Morais, Carlos. Justiça Constitucional II, Coimbra:
Coimbra Editora, 2011
Segado, Francisco Fernandez. La Justicia Constitucional: una
vision de derecho comparado, Madrid: Dykinson Publishing,
2009
Mendes, Gilmar. O papel do Senado Federal no controle de
constitucionalidade, in Revista de Informação Legislativa,
Brasília: Senado Federal, a.41, n.162, Abr/Jun. 2004
Pereira Coutinho, Luis. A Autoridade Moral da Constituição,
Coimbra: Coimbra Editora, 2009
20