Breves contribuições para uma reflexão sobre o poder constituinte e a legitimidade do direito na modernidade no marco do debate jusfilosófico e teorético-constitucional contemporâneo

Abstract

The present text addresses some of the issues on Constituent Power, the legitimacy of modern law, based on contemporary authors, such as Jürgen Habermas, Michel Rosenfeld and Ronald Dworkin. In this sense, we discuss the legitimacy of the Constituent Power, from the perspective of the constitution, elaborated by it upon the founding of a new political community. Next, we set out to reconstitute the validity and legitimacy conditions of ordinary law. At this point, we consider aspects of the legislative process of justification of legal norms. Finally, we present a consideration on the legal application, aiming at reconstruct the conditions which must be met, so as to make such application valid and legitimate. Generally speaking, the text proposes a study of Constituent Power and of the legitimacy of the law, from a perspective adequate to the proceduralistic paradigm of Constitutional Democracy, starting from the internal connection between public and private autonomy of members of legal communities.