O “direito em trânsito” na “pós-modernidade”: perspectivas do constitucionalismo para a (re)configuração do estado democrático de direito

Abstract

This study focuses on the condition of State and Law in “postmodernity” and the prospects of Constitutionalism for (re)configuration of the Democratic Rule of Law in a new space-time paradigm. It seeks to address the problem of how to situate State and Law between integration and interference of the internationalized Law in face of the inadequacies of national legal-political institutions and Constitutionalism itself in order to distill a new Law (the “Law in transit”) and enable the (re)configuration of the Democratic Rule of Law based on human rights and from a cosmopolitan perspective. The first part of this dissertation aims to track the historical trajectory that allowed building and consolidating the modern State and Law so as to understand the origin of their structure, operation and foundations. The second part is substantially critical in nature, where I propose the deconstruction and review of what has been presented. This research is developed within a context that not only recognizes but also admits and takes advantage of the crisis for criticism and renewal. The adopted methodology comprises a hermeneutic phenomenological approach, a monographic method (with complementary contributions of the historical and comparative methods), and indirect documentation as a research technique. It was confirmed at the end of the research that State and Law are facing a serious enough crisis to displace them in space and time as a result of the crisis of modernity itself, whose difficulties to be accepted prevent continuation of debate and construction of alternatives. Another important finding is related to the identification of a circular and metatemporal “Law in transit”, consisting of a double movement, geographical and historical, as a direct reflection of today’s globalized and postmodern scenario. The inevitable changes wrought by these events require the search for new possibilities. Even though they are anachronistic, modern institutions may still play a role in postmodernity (a counterfactual condition that offsets the harmful forces against human rights and the precepts of cosmopolitan democracy), as they can be recovered by Constitutionalism.