The brazilian constitution as third generation product: convergence and differences between the latin american constitutionalism and legal garantism theory

Abstract

This article addresses the phenomenon of the latinamerican constitutionalism, its characteristics, critical issues and its challenges facing the European constitutional models, such as the legal garantism and neoconstitutionalism. That being said, this work compares the recent theoretical proposals within the Latin American constitutional theory with the European tradition. In this way, we delimit the aspects of main Latin American constitutionalism theory and contrast European constitutional theories, such as Ferrajoli’s legal garantism and representatives of neoconstitutionalism such as Dworkin, Alexy, Müller and Haberle. In this work, we seek to understand and explain the so-called "third generation constitutions”, in order to think properly of the Brazilian constitutionalism and the influence of the new legal institutions and procedural safeguards contained in our Constitution which give means to make possible fundamental and social rights. After that, we examine the affinities that Latin American constitutionalism has found in the legal garantism theory, which enables fundamental and social rights, and which has been largely accepted in countries similar to Brazil despite of its European origins.