A Fossilised Constitution僵化的宪法.pdfVIP

Ratio Juris. Vol. 17 No. 4 December 2004 (454–73) A Fossilised Constitution? VIRGÍLIO AFONSO DA SILVA* Abstract. The purpose of this paper is to analyse the limits of constitutional reform. Some constitutions, for example, the German (art. 79, sec. 3), the Italian (art. 139), the Portuguese (art. 288), the French (art. 89, sec. 5), and the Brazilian (art. 60, sec. 4), contain an “essential core” of rights, which is usually understood as being immune to change. The initial focus in the paper is on the discussion on whether and to what extent these “essential cores” are indeed immune to change. A second focus is on Ross’s paradox. Here I analyse and reject Ross’s own solution to the paradox and I show, too, that the paradox admits no solution that does not imply a discontinuity in the legal system. This paper has as its aim an analysis of the limits of constitutional reform— this by dealing with two of its most problematic aspects: (1) the possibility of overcoming the clauses that protect some rights against constitutional amendments (hereafter: eternal or prohibitory clauses) and (2) the problem of self-amendment.1 Although the argumentation will focus primarily on examples from the Brazilian constitution—especially in the case of eternal clauses—it has a universal character, for the problems discussed are, above all, problems of general constitutional theory. The main targets against which my arguments are directed are two papers which—though having almost nothing in common—sum up the arguments in favour of the possibility of changing the constitutional articles that lay down the conditions, procedures and limits of constitutional reform. These papers will serve as the basis for the following discussion. The first paper, by Ferreira Filho, deals with the range of the so-called eternal clauses and * I am indebted to Marco Aurélio