FOR LOVE OF THE LOST CAUSES:

BETWEEN CONSTITUCIONALISM, NEOCONSTITUCIONALISM AND THEIR INFLUENCES ON THE 1988 CONSTITUTION.

Abstract

This article aims to establish relations between the Constitutionalist and Neoconstitutionalist Theories and to point out their consequences in the 1988 Constitution, thus seeking to present Positivism and Post-positivism, their dichotomies and the nuances of thought between Kelsen and the thinkers of the Turn Kantiana. It is a research of a basic nature, whose priority is the theoretical-bibliographic method of procedure and the approach is carried out through the dialectical method. In the historical analysis, it is possible to infer that Constitutionalism, linked to Positivist conceptions, degraded the conception of justice, in view of the bad consequences, manifestly, in the tyrannies in several States in the 20th century. Thus, the Kantian Turn of Post-Positivism influenced Neoconstitutionalist thoughts, resulting in constitutions based on human values ”‹”‹and morals, linked to the principles of Positivist Constitutionalism, such as the 1988 Brazilian Constitution, which, with the characteristic of being analytical, deals with very specific guarantees. It is conceived that, despite the dichotomies, theories converge, resulting in constitutional orders such as the Brazilian one, which constantly reiterates in its devices the importance of protecting individual guarantees.