dezembro 12, 2011

Limitações da Lei (parte I)

Central to many theories of democracy is the view that law is legitimate only when endorsed by the consent of the governed. If this is not to be a hollow slogan, we must have some idea of where to look for the consent, or dissent, of the people to their form of government. One of the most important and indicative manifestations of consent is the people's willingness to use the mechanisms of legal change, especially the supreme power of constitutional amendment. Non-use of the power might reveal a certain contentment with the unamended constitution, and use of it might reveal a certain contentment with the established channels of change and the current form of the constitution. But clearly the inference from use and non-use of the amendment power to consent is only valid if certain conditions are met. For an onerous or unfair procedure could thwart amendment long after desire for change became widespread and intense. An amending procedure that was undemanding for a privileged class might result in frequent use that did not reflect the desires of the larger public. Hence, use and non-use of the amending power will not really indicate consent unless the procedure is fair and neither too difficult nor too easy. But to change the fairness and difficulty of the amending procedure are virtually the only reasons to amend the amendment clause. Hence, self-amendment will almost always affect our ability to assess the people's consent to be governed by their constitution and the people's power to alter legal conditions to meet their consent.


Our Lockean ears resonate with the proposition that the people are sovereign and that they are bound to obey their laws by contract principles. Yet the paradox of omnipotence arises in another form if the first generation of sovereign people can bind its successors. The adoption of a constitution with an amendment clause [AC] is a revocable act, because the AC permits piecemeal change and wholesale replacement. As long as the establishment of the constitution is revocable by later generations, and the method of amendment is fair, then the first generation is not oppressively binding its successors. But if the method of amendment is not fair, or is too difficult, then the constitution inherited by future generations does oppress and is partially illegitimate. The Lockean consent theory is strengthened as a normative theory of justice, and protected from the paradox of omnipotence, if we insist that the legitimacy of law requires the continuing consent of the governed, not just the consent of the founding generation. [nt.11,pg.379]

Peter Suber - The Paradox of Self-Amendment (1990)

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