(NEO) CONSTITUTIONALISM, PROGRESS OR RETURN? AN ANALYSIS OF THE NEOCONSTITUTIONALIST PARADIGM IN LUIGI FERRAJOLI'S WORK IN THE LIGHT OF SOME CRITICISMS BY FERNANDO ATRIA

• Main Author: Juan Francisco Iosa
• Format: Article
• Language: Portuguese
• Published: Universidade Federal de Santa Maria 2019-12-01
• Series: Revista Eletrônica do Curso de Direito da UFSM
• Online Access: https://periodicos.ufsm.br/revistadireito/article/view/41742

I will hold here a thesis that openly challenges the constitutionalist paradigm defended by Luigi Ferrajoli in Principia Iuris: the thesis asserts that (neo) constitutionalism is pre-modern law. Not only is there a deep structural and functional similarity between pre-modern law and the law of the constitutional state of law but also this similarity indicates that in the law of the constitutional state of law, rather than progress towards a legal system morally superior to the legislative state of law, there is a return to pre-modern law. A return, in other words, to a law deeply hostile to popular self-government, friendly to the government of a judicial elite and, ultimately, functional to a society where genuine equality of human beings moves away from the horizon of our regulatory utopias.