THE CONSTITUTIONAL AUTHORITY, INTERPRETATION AND THE FUNCTION OF THE CONSTITUTIONAL COURT: AN OTHER APPROACH

Abstract

The article deals with the notion of authority in civil law systems, especially the Brazilian one, highlighting the inter-relationship between the notion of legitimacy and the claims of authority, arising out of constitutional courts’ decisions. As a counterpoint to this reality, we present the concept of authority in the common law systems, which differs from the former in its view of the idea of authority, especially considering his constructivist aspects, and the role of the use of mythical facets in power’s legitimation. In this sense, the article points to the Roman concepts of auctoritas and potestas as key influences in modern use of authority, defending that the appearance and the transmission model of authority have been modified in a long way until transplanted on the current pyramidal normative system governed by a Constitution. Then, we focus on the process of overcoming the model of authority transmission based on the constituent power, showing that its classical aspects are metaphysical, a task that has not yet been fulfilled in Brazil. Finally, we take Joseph Raz’s work, highlighting the influence of his idea of legitimization by praxis (legitimation founded by the individual choice and based on practices of whom tries to legitimate him or herself) as the most appropriate way to produce the acceptance of authority claimed in a political, legal system.