dezembro 19, 2011

Limitações da Lei (parte III)

[W]hile unjust laws and changes in law may be legal or valid by virtue of both acceptance and preexisting rules of change, legitimacy may be lost or diminished by an unjust change of law that lessens the people's ability to change the law in the future. In this sense the people's acceptance is a source of authority with continuing omnipotence both descriptively and normatively. Descriptively, the people and the laws are powerless to limit irrevocably the power of acceptance to validate law. Normatively, an unjust legal impediment to the people's continuing power to change law weakens the legitimacy of the system of law to that extent. [pg.105]


Frederic Coudert argues that the danger of an unwritten constitution is abuse of power by an ineffectively limited government, that the dangers of a written constitution are rigidity and violence triggered by slow and difficult change, and that our system of judicial amendment allows us to escape both dangers. C.P. Patterson believes the power of judicial amendment does not provide the best of both worlds, as Coudert argued, but gives the Supreme Court "the same relation to our Constitution that the English Parliament has to the English Constitution. [pg.200]


One might argue that actual legal systems depend on, or inevitably embrace, at least a few principles of "natural law" or morality, and that the latter are absolutely immutable. For example, one might argue that not even revolution can change the rule that the people have a right to revolt, that promises should be kept, that self-defense excuses homicide, and so on. [nt.1, sec.8]

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

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