Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2018-09-27T12:27:16Z No. of bitstreams: 1 Bruno Martins Nakagawa Lanfranchi.pdf: 1531624 bytes, checksum: ff37bbc179ef1ec62ac9e4adb168f7bf (MD5) / Made available in DSpace on 2018-09-27T12:27:16Z (GMT). No. of bitstreams: 1 Bruno Martins Nakagawa Lanfranchi.pdf: 1531624 bytes, checksum: ff37bbc179ef1ec62ac9e4adb168f7bf (MD5) Previous issue date: 2018-08-28 / Coordenação de Aperfeiçoamento de Pessoal de Nível Superior - CAPES / This research proposes acomparison of the Constituent Processes from Brazil and Chile and its consequences in shaping respective election rules.Therefore, the work starts form the historical assessment of circumstantial aspects in Brazil and Chile during the decades of 1970s and 1980s, their institutional and regimental structures within the Constituent Processes, which resulted in the Chilean Constitution of 1980 and Brazilian Constitution of 1988, as well as the most relevant politicians who participated on the elaboration of the Constitution Charter.Thus, the investigation becomes relevant as subsidy for debates around the proposals for an election reform in Brazil, as well as for the comparative researches around the institutionalization of political system in Latin America.By doing so, the investigation carries out a historical systematization of the social and political contexts which motivated the elaboration of election rules in Brazil and Chile. In this sense, proposes a research upon speeches and resolutions recorded in official documents such as Minutes, amendment proposals, draft bills and enacts, building a category of analysis which allows the evaluation of conflicts and convergences, themes and contexts that affected the elaboration of election laws within both Constitutions, more specifically, within the maintenance of representation systems, being Proportional in Brazil and Binomial in Chile, more focused on the diverging and similar elements, both under circumstance or diversity perspective of the rule / A pesquisa propõe a comparação dos Processos Constituintes de Brasil e Chile e suas consequências na conformação das respectivas regras eleitorais. Assim, o trabalho parte do levantamento histórico dos aspectos conjunturais de Chile e Brasil durante as décadas de 1970 e 1980, das estruturas institucionais e regimentais dos Processos Constituintes que resultaram nas Cartas Constitucionais do Chile, em 1980, e do Brasil, em 1988, assim como dos atores políticos mais relevantes que participaram da elaboração dessas constituições e leis constitucionais. Dessa forma, a investigação se faz relevante para subsidiar o debate sobre as propostas de reforma eleitoral no Brasil, assim como para as pesquisas comparativas acerca da institucionalização dos sistemas políticos da América Latina. Para isso, a investigação realiza uma sistematização histórica dos contextos sócio-políticos que motivaram a elaboração das regras eleitorais no Brasil e Chile. Nesse sentido, propõe a pesquisa de discursos e resoluções registrados em documentos oficiais, tais como Atas, propostas de emendas, anteprojetos e projetos de lei, construindo categorias de análise que permitem avaliar os conflitos e convergências, os temas e os contextos, que implicaram na elaboração das leis eleitorais presentes nas Constituições dos dois países em questão, mais especificamente, da manutenção do sistema de representação proporcional brasileiro e do sistema binomial chileno. Portanto, torna-se possível a sistematização de um quadro comparativo das condições que deram origem aos sistemas eleitorais brasileiro e chileno, com foco nos elementos divergentes e semelhantes, seja na perspectiva dos contextos contingenciais ou da diversidade na regra

The last two decades have witnessed a period of constitutional change without precedent in the United Kingdom’s contemporary history, and prominent constitutionalists have suggested that these transformations signified primarily a legalisation of the British constitutional settlement. The present research hence offers a review of the most salient and impactful instances of constitutional change since 1997 with the aim of assessing in what ways the UK could be transitioning from a more political to a more legal constitutional framework. It highlights a greater reliance on legal devices to regulate constitutional processes and more frequent resort to judicial mechanisms of constitutional control. Indeed, the virtual entrenchment of various classes of norms (ECHR rights, common law constitutional rights and principles, Thoburn-‘constitutional statutes’) suggests the formation in British public law of a ‘bloc de constitutionnalité’ that could serve as basis for increasingly genuine forms of constitutional review. Concurrently, British courts are performing more of the functions of constitutional courts and appear willing to assume the role of constitutional guardian ascribed to the judiciary in a legal-constitutional model. Overall, the political constitution and its core principle of parliamentary sovereignty seem to be under challenge, particularly in judicial and jurisprudential debates grounded in the influential theory of common law constitutionalism. We therefore argue that the British constitution can no longer be described as exclusively ‘political’ and that there is at least some evidence of a trend towards legal constitutionalism in the UK.

The Canadian constitutional crisis of 2008 triggered a renewed interest in the structure and workings of Canada’s institutions of government. Particular controversy was generated by Prime Minister Stephen Harper’s assertion that only the political party with the most seats in the House of Commons has the right to form a government and that it is illegitimate for the opposition parties to form a coalition with a legislative majority. Peter Russell terms these contentions “Harper’s New Rules”, and is one of a large group of scholars who deride the rules as being undemocratic and in violation of the traditional practice of parliamentary democracy and responsible government (which holds that the House of Commons is the final arbiter on the viability of potential governments). This thesis investigates the quick rejection of Harper’s Rules and determines that their attempt to enforce a critical moral standard on Harper is problematic because for a constitutional convention to be binding on political actors, it requires a consensus on how a convention promotes constitutional principle--a consensus that does not exist about how a party receives a mandate to govern. Throughout Canada’s history with minority government transitions, there has been a subtle discourse that implies many political actors have operated under the norm that the largest party in the House of Commons does indeed have a right to form the government. As well, many of the claims that are made about the democratic origin and purpose of the structure of responsible government are difficult to substantiate and can be challenged. The resulting disagreement makes it difficult to declare a constitutional interpretation to be wrong, given the malleable character of conventions, and that these constitutional disputes can generate into crisis and be exploited for partisan gain. This is the situation the federal party system may soon find itself in, as likely future minority governments will continuously bring the opposing conceptions of a mandate into conflict. This thesis concludes that determining constitutional conventions based on how they defend principle is a hazardous approach because political actors can always frame their actions in the rhetoric of democratic legitimacy, and if the actor can avoid serious political repercussions or find support in the public, then the interpretation becomes viable.

This diploma thesis focuses on constitutional conventions in the Czech Republic. Its aim is to analyze their role in the Czech constitutional system. The work focuses on five areas where the influence of constitutional customs is often spoken. Priority is given to exploring the places where several constitutional institutions are interwoven because it is precisely on them that the power of constitutional conventions is best documented. It focuses in particular on how the practices have been observed in the past and how other constitutional actors have responded. The thesis examines the influence of introducing the direct election of the president to constitutional conventions. A directly elected president may feel more legitimate, and in order to gain a stronger position for himself, he may tend to violate some constitutional conventions or try to introduce new ones. As a result, the finding that the Czech constitution is still a relatively new document and that there was not enough time to fully establish most of the constitutional conventions. However, some constitutional conventions are already becoming an integral part of the constitutional order, whose strength will be decided by the following years. If the constitutional actors - and especially the directly elected presidents - will continue to...

Free law-finding (causes and consequences) Abstract This dissertation deals with the phenomenon of free law-finding and analyses its causes and consequences. The introduction outlines the aim of the dissertation, reasons for choosing this topic, the current state of research, especially in the Czech-Slovak legal environment, methodology and also briefly the issue of causality in general. The main part of the dissertation is divided in two parts. The first part contains description and analysis of the German Free Law Movement (Freirechtsschule) from the turn of the 19th and 20th centuries led by the German legal scholar Hermann Kantorowicz and his manifesto The Battle for Legal Science (Der Kampf um die Rechtswissenschaft), which formed the theoretical basis of the Free Law Movement and, thus, also of this dissertation. In this part, the lives and works of the main representatives of the Free Law Movement are discussed (Hermann Kantorowicz, Ernst Fuchs, Eugen Ehrlich), but also some others are mentioned including Gustav Radbruch. At the end of the first part, the analysis of the free law in the theory of the Free Law Movement is provided, as well es of the causes and consequences which have led to the emergence and existence of the Free Law Movement; finally, the analysis of the consequences of the Free Law...