Banca de QUALIFICAÇÃO: Mateus Rocha Tomaz

Uma banca de QUALIFICAÇÃO de DOUTORADO foi cadastrada pelo programa.
STUDENT : Mateus Rocha Tomaz
DATE: 21/12/2023
TIME: 14:00
LOCAL: https://us02web.zoom.us/j/82542061118?pwd=S1VqYTZkSHMyMmNzWEdRL2cwMy9aUT09
TITLE:

THE UNTOLD STORY OF THE GENERAL THEORY OF THE STATE IN BRAZIL: adaptable jurists, dictatorship and
legal education in the Estado Novo (1937-1945).

KEY WORDS:

General Theory of the State. Monarchical Principle. Moderating Power. Welfare State Paradigm. Constitutional
dictatorships. Legal education. Decree nº 2.639/1940. Adaptable jurists.

PAGES: 317
BIG AREA: Ciências Sociais Aplicadas
AREA: Direito
SUMMARY:

The theoretical common sense that has historically been formed around the General Theory of the State (GTS) – seen by many jurists, even today, as just a neutral and desirable analysis of the state phenomenon – presents itself as quite problematic. In contraposition to this widespread narrative, the historical context in which the GTS emerged in Germany around the second half of the 19th century, as well as the thought of authors such as Hegel, Stahl, Gerber, Laband, Gierke and Jellinek, underline that this legal field constituted itself also as a school of thought with a quite clear political aspiration, based on positivist and organicist premises, to legitimize the Monarchical Principle, in opposition to the liberal constitutional principles of popular sovereignty and separation of powers. In fact, it is possible to observe a functional equivalence between this doctrinal tradition of the germanic GTS and the peculiar reinterpretation of the theory of the Moderating Power originally proposed by Benjamin Constant during the Brazilian Empire, not only due to their common political origins (restorative tradition of the french Charte of 1814 and of the Congress of Vienna), but also due to the concrete role that the two traditions played in their respective contexts precisely with regard to the legitimization of conservative political agendas sheltered, to a large extent, by the symbolic-constitutional role of the Monarch. With the proclamation of the Republic in 1889, specters of the Moderating Power reappeared in the form of exceptional constitutional measures (state of siege and federal intervention) within the Governors' Policy, which, in turn, represented a true republican functional equivalent of the imperial Moderating Power in its search for conservative political stabilization and curtailing the sovereignty of the people. With the Revolution of 1930, Brazil reached the Welfare State paradigm, experiencing flexibility in the principle of separation of powers in a context of great political centralization around the Executive Branch and the President of the Republic. The short period of validity of the 1934 Constitution was marked by the escalation of political crises and by Vargas' nostalgia for his unlimited powers at the time of the Provisional Government. In this context of political tensions, the Estado Novo coup of 1937 marked the institutionalization, in Brazil, of a “constitutional dictatorship” and, with it, of a peculiar segment of the General Theory of the State that emerged in the midst of the Methodenstreit played around
the Constitution of Weimar, which recreated the classic 19th century GTS: the authoritarian Constitutional Theory of Carl Schmitt through Francisco Campos, the author of the 1937 Charter. With the issuance of Decree-Law nº
2.639/1940, which divided the chair of Public and Constitutional Law into the chairs of General Theory of the State and Constitutional Law, the GTS was institutionalized in Brazil and began to operate in a double-edged authoritarian way, as a state doctrine and, at the same time, as a university chair capable of opening up a privileged academic space for constitutionalists aligned, even if momentarily, with the Estado Novo regime. At this point, this thesis aims to underline the concrete effects of the aforementioned decree in the four main Brazilian Law Schools in the1940s (National Faculty of Law, Faculty of Law of Minas Gerais, Faculty of Law of Recife and Faculty of Law of São Paulo), in order to demonstrate power dynamics led by “adaptable jurists”. Finally, in the last chapter of the thesis, a re- reading of the General Theory of the State will be undertaken in light of the Democratic Rule of Law, in order to establish that the complex constitutive tension between the public and private spheres of society in this paradigm requires not only that we “brush against the grain” (Walter Benjamin) when approaching the authoritarian history of the aforementioned discipline, but, above all, that its most ingrained authoritarian assumptions be finally laid bare and reread by democratic constitutionalism, especially by the principle of popular sovereignty, thus no longer admitting the existence of an untouchable instance of absolute power represented by the Monarchical Principle or the Moderating Power (whether exercised by the Executive Branch, the Legislative Branch, the Supreme Court, the Federal Prosecution Service, the Army or even the market), whose anti-democratic specters still hover over Brazilian constitutionalism.

COMMITTEE MEMBERS:
Externo à Instituição - ALEXANDRE RONALDO DA MAIA DE FARIAS - UFPE
Externo à Instituição - GABRIEL REZENDE DE SOUZA PINTO - UFPB
Externo à Instituição - MARCELO ANDRADE CATTONI DE OLIVEIRA - UFMG
Interno - 1134743 - MARCELO DA COSTA PINTO NEVES
Presidente - 321346 - MENELICK DE CARVALHO NETTO