Author(s) Ricardo Alexandre Sousa da Cunha
Advisor(s) Pedro Carlos da Silva Bacelar de Vasconcelos
Year 2012
Synopsis The growing ease of transportation and communication on a planetary scale has moved social dwellings beyond the borders of the State. The powers of the Nation-State prove increasingly insufficient to answer the needs of assistance, regulation and conflict resolution, which therefore happen at the supra-national level. From the experience of classic international law, namely international organizations, different forms of exercising public authority have emerged that threaten the monopoly of the State in the use of (constitutionally) legitimate “public violence”. Also threatened are the normative conquests of the Constitution – its driving parametric character in ensuring the substantive and procedural legitimacy of the State´s powers are at stake before a “New Administrative Law”, which emerges besides the State, the Constitution and national law. However, these decisions, some of which directly enforced over individuals, find procedures that were thought for State deliberation. The decisive weight of the State in these decision procedures, namely legislative, hinders the search for a normative reference to these efforts, criticised as the contingent result of hegemonic struggles. Also the fragmentation of international law in subsystems, some with the ambition to become “self contained regimes”, does not determine the rules on international responsibility of the State, in cases of subsystematic failure that may allow them to offer some form of redress. The constitutionalization of the supra-national exercise of authority, especially administrative, cannot be separated from the universalization of the Constitution as normative standard for State‟s action, also at the supra-national level. The gains in the legitimacy of supra-national action so obtained authorize the growing openness of national legal orders to supra-national law that, in a continuous movement, led to its possible downfall. Therefore, it is decisive to ensure the coherence of the relationship between different legal orders. From a national perspective the challenge is to perfect the terms of the State‟s external abidingness, as well as its fulfilment and control by the separated powers. This is the most immediate cosmopolitan step, the one which any community may autonomously be asked to take.
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Author(s) Ricardo Alexandre Sousa da Cunha
Advisor(s) Pedro Carlos da Silva Bacelar de Vasconcelos
Year 2012
Synopsis The growing ease of transportation and communication on a planetary scale has moved social dwellings beyond the borders of the State. The powers of the Nation-State prove increasingly insufficient to answer the needs of assistance, regulation and conflict resolution, which therefore happen at the supra-national level. From the experience of classic international law, namely international organizations, different forms of exercising public authority have emerged that threaten the monopoly of the State in the use of (constitutionally) legitimate “public violence”. Also threatened are the normative conquests of the Constitution – its driving parametric character in ensuring the substantive and procedural legitimacy of the State´s powers are at stake before a “New Administrative Law”, which emerges besides the State, the Constitution and national law. However, these decisions, some of which directly enforced over individuals, find procedures that were thought for State deliberation. The decisive weight of the State in these decision procedures, namely legislative, hinders the search for a normative reference to these efforts, criticised as the contingent result of hegemonic struggles. Also the fragmentation of international law in subsystems, some with the ambition to become “self contained regimes”, does not determine the rules on international responsibility of the State, in cases of subsystematic failure that may allow them to offer some form of redress. The constitutionalization of the supra-national exercise of authority, especially administrative, cannot be separated from the universalization of the Constitution as normative standard for State‟s action, also at the supra-national level. The gains in the legitimacy of supra-national action so obtained authorize the growing openness of national legal orders to supra-national law that, in a continuous movement, led to its possible downfall. Therefore, it is decisive to ensure the coherence of the relationship between different legal orders. From a national perspective the challenge is to perfect the terms of the State‟s external abidingness, as well as its fulfilment and control by the separated powers. This is the most immediate cosmopolitan step, the one which any community may autonomously be asked to take.
See more here.