A inovação constitucional austríaca e a esfinge de Weimar – revisitando a celeuma Kelsen/Schmitt
This paper is engaged to the study of theoretical dispute between Hans Kelsen and Carl Schmitt, under the sign of the role of each one of them, respectively, in the legal innovations of the Austrian Constitution of 1918 and the shortcomings of the Weimar Constitution. Still leaning on that paradigm,...
| Published in: | Revista Interdisciplinar de Direito |
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| Main Author: | |
| Format: | Article |
| Language: | English |
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Centro Universitário de Valença
2013-12-01
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| Online Access: | http://revistas.faa.edu.br/index.php/FDV/article/view/166/134 |
| Summary: | This paper is engaged to the study of theoretical dispute between Hans Kelsen and Carl Schmitt, under the sign of the role of each one of them, respectively, in the legal innovations of the Austrian Constitution of 1918 and the shortcomings of the Weimar Constitution. Still leaning on that paradigm, the paper aims to analyze the main problems arising from interpretations of both pieces of legislation, namely, legality, democratic legitimacy and limits. In the present study we set the problem arising from the uproar that took place between the two jurists about who should be the Guardian of the Constitution. Th e crux of this debate was the prism of analysis of the nature of judicial review, with a revised theory by Austrian Constitutionalism, specifi cally, the fi nal determination of the proceedings which would fi t the power to enforce the Constitution. |
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| ISSN: | 1518-8167 2447-4290 |