Fundamental legal concepts, in many areas of public law, seem to come in clusters. By “clustering,” I mean quasi-synonyms where the conceptual identity or separateness of the concepts within the is never quite clear. One such cluster is the series sovereignty – statehood – territor(ialit)y – jurisdiction. Another similarly wide cluster consists of citizenship – nationality – status – residence – domicile. Courts and scholars sometimes take great pains to distinguish these concepts, and at other times seemingly carelessly use them as interchangeable words.
Clusters permit several types of ambiguities within law. Concepts can be distinguished or assumed to be identical; distinguishing can be done for specific purposes, events or legal domains. Concepts can also be avoided by substituting process for definition. My proposal aims to create a typology of clusters and their uses, and to engender a debate about the metapolitics of concepts within clusters.
This research proposal intends, in some way, to synthesize three lines of interpretative theory in Brazil ( 1) philosophy of constitutional interpretation; 2) methodology of constitutional interpretation: and 3) deliberation and constitutional interpretation) by proposing the analysis of the constitutional legal argumentation in Brazil carried out from the interpretative factors handled by the justices in their single opinions and the weight of said factors within the broader theoretical context developed about them.
Here are some provisional results:
a) interpretative frames: there is a lively interaction between abstract constitutional text and normative production of other political entities, mainly the legislative;
b) Inconvenient absences: constitutional history does not play a relevant role for the construction of fundamental rights.
c) Legal science is more important than the precedents of the court.
This paper contends that the norms literature underestimates the full potential for contestation in the interpretation and implementation of legal norms. In particular, the paper engages with Wiener’s theory of contestation and contends that Critical Legal Studies (CLS) provides the most fitting legal foundation for Wiener’s theory. Indeed, this theory and CLS share an understanding of norms as indeterminate, contingent, and partially constituted by those who implement them. Moreover, incorporating CLS’ insights can contribute to strengthening Wiener’s theory. Indeed, CLS suggests that the formal validity of a norm is likely to be questioned at the implementation stage, an instance of contestation the theory does not engage with but that is true to Wiener’s emphasis on contestation “all the way down”.