Between the structuring of the federative pact and the crisis of constituent power

a habermasian analysis of constitutional legitimation

Abstract

The present article proposes to approach a reflexive analysis regarding the theoretical bases of federalism, using, for this, the Habermasian discussion in relation to the crisis of the constituent power in modern global democracies. In this sense, the theoretical assumptions that led to the formation of the contemporary notion of federative pact will be analyzed, as well as the complexifying aspects arising from this formative process. Then, a discussion is made about the causes of the crisis of constitutional power and how it ends up reflecting in the tuning fork between the symbolic federative pact and federalism itself, reproducing a kind of “institutional shell without civic substance”. Furthermore, it seeks to demonstrate the decisive impact of this symbolic federalism on the tripartite model of constituted powers, notably with regard to the deepening of the permeability of competences and the consequent constitutional dialogue, a fundamental characteristic of the authorizing State (Ermächtigungsgesetz). In conclusion, Jürgen Habermas' plural notion of constituent power is presented, having as a background the model of the new Timorese constitutional charter and its supranational archetype. For this purpose, we sought to trace an analysis of the public sphere process and how this concept served as a paradigm for the formation of the main doctrinal proposals of constitutional legitimacy, reaching its maximum influence with the theory of plural constituent legitimacy defended by Habermas.