PRESENTATION

Since its first elaborations, the modern Constitution has been understood as an order qualitatively superior to common law. This differentiation of normative degrees immediately led to the question of how to guarantee, through institutions, the precedence of this superior right.

The post-1945 European sphere saw the formation of a relatively uniform response to the problem. Several national orders that until then were unaware of constitutional supremacy began to take advantage of it – a change usually recorded as the transition from the Rule of Law (Rechtsstaat) to the Constitutional State (Verfassungsstaat). The formula captures, in concept, a civilizing consensus created in favor of an open and plural society. It was by express deliberation of national constituent assemblies that the acts carried out by elected political bodies were required to be subject to control. There was also a transnational convergence regarding the means: constitutional jurisdiction.

Arising from Hans Kelsen's minutes during the constitutional process of Austria (1918-1920), constitutional jurisdiction (Verfassungsgerichtsbarkeit) is notable for the institution of a constitutionality control carried out in the abstract (mainly or incidentally), which in turn figures as the core competence of a top Court. Combated in Weimar Germany by the communis opinio of Public Law and reneged in its own country of origin with the advent of Austrofascism, constitutional jurisdiction rises to the status of a basic instrument of the Constitutional State.

The 1980-90s came to show that we were not faced with a European specificity. The collapse of dictatorial regimes in Latin America, Africa and Asia presented similar dynamics in terms of the point: strengthening the control of constitutionality of laws and normative acts would be the most appropriate institutional means to guarantee the political freedom that was then regained. In countries like Brazil, with a long tradition of granting judges the prerogative to examine constitutional issues, this strengthening involved the abstraction of constitutionality control – through the clear incorporation of procedures, techniques and institutes typical of Verfassungsgerichtsbarkeit with a Kelsenian matrix.

The state of the art reveals the central place that constitutional jurisdiction occupies in the structure of the Constitutional State, as well as the importance that it reveals for guaranteeing this political regime – a standard to which the Federal Constitution of 1988 unequivocally adheres.

The Hans Kelsen Center for Studies on Constitutional Jurisdiction already assumes this centrality in its title. It also recognizes the decisive role played by Kelsen – on a scientific level and in his professional work – in the development of legal artifacts that left the Constitutional Courts in more adequate conditions to face the problems presented by an increasingly complex society.