Revista Opinião Jurídica (May 2022)
THE CONSTITUTIONALIZATION OF SELF-REGULATION(MENTA)TIONS OWNED IN SOCIAL SYSTEMS IN PERIPHERAL COUNTRIES AND THE IMPERATIVENESS OF MINIMUM STATE REGULATION ON FUNDAMENTAL RIGHTS TO MAINTAIN THE DYNAMIC BALANCE BETWEEN THE INTERNAL SCOPE OF SOCIAL SYSTEMS
Abstract
Objective: The present work, without pretensions of exhaustion of the theme, has the general scope to study the theoretical proposal established by the social constitutionalism developed by GuntherTeubner, focusing on the idea of constitutionalism beyond the State and on the functions of fundamental rights in this innovative bias, especially , in transnational horizontal relations. As a specific objective, this article initially analyzes the feasibility of such a constitutional theory in late modern countries, especially with regard to the application of the "quality tests" proposed by social constitutionalism, so that the norms of transnational regimes acquire the constitutional status. In this step, the article points its magnifying glass with emphasis on the indispensability of a dynamic balance in the relations between the internal spheres of the social subsystems (spontaneous and organizational) and the difficulties of this happening in countries of the Global South, which leads to an impossibility of constitutionalization of the self-regulations produced exclusively by the social sectoral regimes in such places. In the end, it is observed whether, in peripheral countries, a minimum state regulation on the self-regulation(mentation) produced by the social subsystems is essential, through which the participation of fundamental rights as tools of balance the internal spheres of the social subsystems (spontaneous and organizational). Methodology: The research has a basic or pure nature, adopts the qualitative-deductive method and uses the bibliographic procedure, with the scope of confirming the hypothesis raised in solving the problem raised. In this sense, the following will be observed: a) the effects of globalization and the systemic hypercomplexity of world society on the traditional idea of liberal-modern constitutionalism and Gunther Teubner's theory of social constitutionalism; b) in this scenario, the paradigm shift in the functions of fundamental rights, which abandon the historical individual-subjectivist bias in favor of an institutional-trans-subjective-collective perspective; c) the consequences that this brings to the effectiveness of fundamental rights on private relationships, especially those at a transnational level; and, finally, d) the impact of the imbalance in the relations between the internal spheres of the social subsystems (spontaneous and organizational) in peripheral countries and the repercussions on the possibility of applying Gunther Teubner's theory of social constitutionalism, especially with regard to the exclusivity in the production of self-regulation(mentations) with constitutional status by the social subsystems themselves. Results: It was found that, in late modern countries, given the imbalance in the relationships between the internal spheres of social subsystems (spontaneous and organizational), there is an extreme difficulty in the direct and pure application of Gunther Teubner's theory of social constitutionalism, especially with regard to the exclusivity of production of self-regulation(mentations) with constitutional status by the social subsystems themselves. In these regions of the planet, the constitutionality of such norms depends on a minimum regulation of the State, through which the participation of fundamental rights as maintainers of balance in the dynamics of those relations is guaranteed. Contributions: In peripheral countries, the constitutionality of norms of their own social regimes (self-regulation(ment) tions) depends on a minimum regulation of the State, through which the participation of fundamental rights is guaranteed as maintainers of balance in the dynamics between the relationships of the areas internal (spontaneous and organizational) of social systems.
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