Moderating Power in the 19th century Brazilian Constitutional Doctrine

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Pubblicato

2026-01-13

DOI:

https://doi.org/10.63277/gsc.v40i.4439

Autori

  • Walter Guandalini Junior Federal University of Paraná (UFPR) and at the International University Centre (Uninter)

Parole chiave:

Storia del diritto costituzionale, Costituzione del 1824, potere moderatore, ordine del discorso giuridico, modernizzazione dell’ordinamento giuridico brasiliano

Abstract

This study addresses legal debates from the second half of the nineteenth century about the legal responsibility of the moderating power. Through an archaeological analysis of the structure and content of the arguments used, this paper aims to understand the rules that constructed the discursive order within which the debate was developed and which have inspired the complex process of modernization of the Brazilian legal discourse after the independence of the country. We conclude that differences between jurists of the period are not only political or hermeneutical, but also reflect the contrast between two different conceptions of law. The first is a rational-realist notion, which understands law as a set of necessary relationships drawn from the spirit of the constitutional order while the second notion is a legal-formalist one, which understands law as a set of positive norms formalized on the text of the constitution.

 

 

Biografia autore

Walter Guandalini Junior, Federal University of Paraná (UFPR) and at the International University Centre (Uninter)

Associate Professor of Law, Faculty of Law.