O Hans Kelsen Center for Studies on Constitutional Jurisdiction It strives to foster a productive dialogue between Constitutional Theory and Constitutional Review. To this end, it promotes lectures, debates, and seminars designed to simultaneously introduce students to the environment of cutting-edge legal research and to provide legal professionals with the opportunity to reflect, with a theoretical foundation, on their professional practices.
In line with the IDP's proposal to promote the internationalization of teaching, research, and outreach, the Kelsen Center elevates legal comparison to the status of a structuring element of its actions and projects, as exemplified by the institutional dialogue it maintains with the Hans Kelsen-Institut in Vienna, and more generally with the Republic of Austria, through the Austrian Embassy in Brazil. In this context, the Kelsen Center curates the Austria-Brazil Collection, focused on the translation of Austrian publicists or works dedicated to constitutional jurisdiction; and houses the "Contemporary Constitutionalism" Collection, which aims to disseminate the most prominent current theoretical positions to the Brazilian audience.
PRESENTATION
From its earliest drafts, 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 law.
The post-1945 European context witnessed the formation of a relatively uniform response to the problem. Several national legal systems that had previously lacked constitutional supremacy began to benefit from it – a change usually recorded as the transition from the Rule of Law (Rechtsstaat) to the Constitutional State (Verfassungsstaat). The formula, in concept, embodies a civilizational consensus fostered in favor of an open and pluralistic society. It was through the express deliberation of national constituent assemblies that it was demanded that the acts performed by elected political bodies be subject to control. There was also a transnational convergence regarding the means: constitutional jurisdiction.
Originating from Hans Kelsen's drafts during the Austrian constituent process (1918-1920), constitutional jurisdiction (Verfassungsgerichtsbarkeit) is notable for establishing a system of abstract constitutional review (either principal or incidental), which in turn constitutes the central competence of a supreme court. Combated in Weimar Germany by the communis opinio of Public Law and rejected in its own country of origin with the advent of Austrofascism, constitutional jurisdiction ascends to the status of a fundamental instrument of the Constitutional State.
The 1980s and 90s showed that this was not a uniquely European phenomenon. The collapse of dictatorial regimes in Latin America, Africa, and Asia presented a similar dynamic on this point: strengthening the control of the 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 constitutional control – through the clear incorporation of procedures, techniques, and institutions typical of Kelsenian-inspired Verfassungsgerichtsbarkeit (constitutional review).
The state of the art reveals the central place occupied by constitutional jurisdiction in the structure of the Constitutional State, as well as the importance it holds for guaranteeing this political regime – a standard to which the 1988 Federal Constitution unequivocally adheres.
The Hans Kelsen Center for Studies on Constitutional Jurisdiction, as its title suggests, assumes this central role. It also recognizes the decisive role played by Kelsen – both scientifically and professionally – in the development of legal tools that have better equipped Constitutional Courts to address the problems presented by an increasingly complex society.