Constitucionalismo Latino-Americano em transformação: a emergência de um novo paradigma constitucional

Abstract

Although the idea of constitutionalism dates back to antiquity, the Constitutionalism in the form conceived today emerged as a political, social, philosophical and cultural movement to question the political domain and for the establishment of documents which consolidate liberal principles, aimed at countering the absolutism and seeking the limitation of Power the division of powers and the guarantee of rights. So, for Constitutionalism the aim lies in the protection that is won in favor of individuals, and the Constitution is the written document on which the legal system is based and reasoned, freedoms are declared, rights are established and limits of political power are set. The classic or liberal Constitutionalism, thought during the absolutist regime in the eighteenth century with the aim to recognize and make positive the rights of freedom and equality has evolved over the centuries and new rights were incorporated into the Constitutional Charters. Therefore we have new ways of conceiving Constitutionalism: liberal or classical, contemporary or neoconstitutionalism. Latin America, which was subjected to a colonization of exploitation, was forced to accept the determination of the metropolis, also with regard to the legal system and institutions. Thus, the Constitutionalism of Eurocentric and North American origin, by the colonizers imposed, was very distanced from the social, cultural experienced by the peoples of the region. This distance between the abyssal Latin American reality and the constitutional postulates, determined the rise of social movements, especially peoples of peasant indigenous origin - who had their cultures violently erased - movements that demand the rescue of their own history and recognition of their identities. Thus a constitutional movement appears to meet new social demands, which calls for another conception of the state with emphasis on plurinationality, on interculturalism, on legal pluralism and suggests an ecocentric turn, breaking the traditional anthropocentric logic and presenting the good life philosophy and the constitutionalisation of the rights of nature. The innovations introduced by this new thinking represent the way to a Decolonization Constitutionalism aiming at the emancipation of peoples of peasant indigenous origin and the achievement of a decent life in harmony, respect and balance with nature