Revista de Estudos Constitucionais, Hermenêutica e Teoria do Direito

Apresentação

Anderson Vichinkeski Teixeira — 2025-07-28

The tax treatment of privately owned assets of historical and artistic interest

Fabio Saponaro — 2025-07-28

Italy is the country with the highest concentration of assets of historical and artistic interest. Based on the definition of cultural heritage considered, it is estimated that Italy holds between 60% and 75% of all artistic assets existing across all continents. In Italy, the ownership of assets of historical and artistic interest does not solely entail advantages and pleasures. Indeed, holders of such assets are subject to specific obligations, including, but not limited to, preservation, maintenance, prohibition of demolition, the State's right of pre-emption in the event of sale, and the obligation to make the assets accessible to the public. In compensation for these obligations, the tax legislator has provided favorable treatment for both direct and indirect taxation. In recent years, however, the traditional tax benefits granted to private owners of historical residences have been progressively reduced, while incentives for assets owned by public entities or non-profit institutions have increased. An emblematic example of this trend is the Art Bonus, which encourages private participation in the preservation and restoration of public cultural assets. This legislative evolution appears to reflect a certain distrust toward private ownership of assets of historical and cultural interest, often considered an "undeserved" form of wealth. The objective of this scientific contribution is to illustrate the fiscal treatment reserved in Italy for private historical residences, highlighting its critical aspects and potential reform perspectives. The current fiscal framework underscores the need for a change in tax legislation to better balance public and private interests, thereby more effectively promoting and enhancing all assets of historical and artistic interest, while ensuring greater compliance with the obligations of conservation and protection of cultural heritage in the interest of the entire community.

Elementos de interesse das abordagens de W.V.O. Quine e D. Davidson para a teoria da interpretação constitucional: análise de três teses da filosofia da linguagem de cunho pós-neopositivista

Michele Beniamino Zezza — 2025-07-28

In this article I aim to identify, within the philosophical-linguistic reflections of Willard V.O. Quine and Donald Davidson, some indications that might contribute to shedding light on a notable phenomenon of constitutional interpretation, namely the influence exercised, in the process of determining the content of the constitutional provisions attributing fundamental rights, from the complex of beliefs, expectations, purposes, etc. Through this operation, I aim to highlight how the identification of a theoretical-doctrinal background relating to the complex of ethical-political conceptions incorporated by the constitutions is strongly influenced by various elements of an intra- and extra-textual nature.

Karl Loewenstein mira a la Argentina: “Democracia militante” y defensa nacional en un nuevo tipo de guerra

Gerardo Tripolone — 2025-07-28

For Spanish-speaking readers, Karl Loewenstein’s name is mainly known through Teoría de la Constitución, the Spanish title under which his book Political Power and the Governmental Process became known. Although his two 1937 texts on “militant democracy” have not been translated into Spanish, they rank among some of the German jurist’s most recognized contributions. Beyond constitutional theory, however, Loewenstein also delved into comparative public law throughout his intellectual career. Argentina was among the countries he considered when developing ideas on the Constitution and “militant democracy” within the context of World War II and the postwar period. Argentina was not only an intellectual interest for him but also a political one: within this context of global conflict, Argentina played a key role in U.S. defense policy across the continent. This study aims to explore Loewenstein’s ideas on Argentine law and politics in connection with his thesis on defending democracy during World War II. To achieve this, it analyzes his published works on these topics and reviews documents on Argentina from the Amherst College archive, which contain materials that Loewenstein produced and collected. This study expands our understanding of one of the most important jurists of the 20th century while delving into lesser-known aspects of Argentine legal history. Specially, this work aims to contribute to constitutional and political theory on national defense and the defense of democracy, two critical fields in our time.

Guardian and Jurisprudence of Exception: Perspectives for a Pragmatic-Systemic Observation of Judicial Decision

Leonel Severo Rocha — 2025-07-28

The theme of exception and its relationship with authoritarianism has recently sparked intense debates in the legal sphere. Using a pragmatic-systemic methodology, with empirical jurisprudential observation of cases in the Supreme Federal Court that involve the terminology of exception, this study aims to address its contemporary relevance in the Brazilian context. It references emblematic cases in the Supreme Federal Court, such as Inquiry No. 4,781 (the Fake News Inquiry) and Action for Noncompliance with a Fundamental Precept No. 572/DF, to revisit the problematization of the limits and meanings of decision-making power in light of the jurisprudence of exception. From a systemic perspective, exception is perceived as an evolving semantic construct that enables the functional differentiation of law within society, reflecting the historical prohibition of non liquet. In this context, the Supreme Federal Court can be observed as the "Guardian of Exception in the Legal System," not in a critical or negative sense, but in terms of its pragmatic-systemic role in preserving functional autonomy and social differentiation. This complements its essential function as the "Guardian of the Constitution.". The hypothesis is that the prohibition of non liquet and the exception represent two sides of the organizational-functional distinction of contemporary law and that the improbability of legal communication is circumvented by judicial communication of exception. Courts, therefore, only free themselves, have freed themselves, and will continue to free themselves from constraints if they recognize the constant need and freedom to decide in light of situations in which the legal system allows for the unfolding of exception.

The Challenges of State Financing: fiscal austerity and the enforcement of social rights in the Democratic Rule of Law

Willame Parente Mazza — 2025-07-28

This article analyzes the relationship between fiscal austerity policies and the allocation of resources within the context of social constitutionalism. Through a bibliographic review, the study demonstrates how the social state, by assuming new responsibilities, has accumulated debts that often did not translate into investments in the constitutionally enshrined fundamental rights. The rise of neoliberalism has consolidated a financial model that prioritizes fiscal balance at the expense of maintaining social rights, leading to the implementation of fiscal adjustments and reforms that benefit the financial system. The research findings indicate that such policies not only restrict the realization of social rights but also reinforce the capture of the public budget by the debt system, thereby undermining the redistributive role of the state. It is concluded that there is a mismatch between democratic principles and the prevailing financial structure, which calls for greater transparency and social control over economic policies to ensure the realization of fundamental rights.

A natureza política da decisão do presidente da República que nega a extradição de estrangeiro: o caso Cesare Battisti

Martonio Lima — 2025-07-28

In Brazil, the President of the Republic's decision to deny the extradition of a foreign national on the grounds of a political crime is directly tied to the exercise of sovereignty and constitutes a political prerogative. This issue gains significance considering the controversy surrounding the limits of the Federal Supreme Court's (STF) authority in such cases. The central question lies in determining whether the STF can review this decision, deemed political, particularly in cases involving the protection of fundamental rights and international treaties. The importance of this study lies in clarifying the boundaries between the Executive and Judicial branches, reinforcing the understanding of the separation of powers and the democratic oversight of high-level political decisions. The study seeks to demonstrate that the presidential decision to deny extradition for political crimes is not subject to judicial review, highlighting the political responsibility of the Head of State in matters of national sovereignty and international relations. The research draws upon an analysis of constitutional provisions, STF jurisprudence, specialized national and international literature, and case studies of landmark decisions, such as the extradition of Cesare Battisti. It was found that the presidential decision is fundamentally political, and judicial review is limited, except in cases where fundamental rights are violated. The STF's role is restricted to assessing the legality of the decision without interfering with its political merit. The study concludes that the non-reviewability of the presidential decision upholds the separation of powers and ensures the autonomy of the Executive in matters of high-level politics. This approach reaffirms the sovereign nature of the decision and its democratic legitimacy within the framework of political and electoral accountability.

A sustentabilidade como avanço civilizatório no planeta do Deus Natureza: de Baruch Spinoza à racionalidade adaptativa

Paulo Marcio Cruz — 2025-07-28

Sustainability, more than just an environmental concept, represents a civilizational advancement essential for balancing humanity and nature. However, its dissemination faces significant obstacles in the contemporary context, marked by the rise of neofundamentalism, characterized by ideological rigidity, intolerance and the propagation of denialism toward science, that not only ignore the complexities of the globalized world but also discredit sustainable initiatives. This article investigates how adaptive rationalism can offer a viable theoretical alternative to overcoming such obstacles. Inspired by Baruch Spinoza’s integrated view of nature and humanity and by neorationalism, it argues that sustainability should be understood as an ethical and philosophical goal, transcending mere technical efficiency. Overcoming these obstacles depends on a rationality that is both critical and adaptive, capable of confronting the complex challenges of a transforming world and fostering the construction of more equitable and sustainable societies while preserving the main pillars of science.

Regulatory convergence as a strategy to mitigate technical barriers to trade and protect the digital consumer in Mercosur

Antônio Carlos Efing — 2025-07-28

Globalization and the advancement of technology have transformed the scenario of international trade, bringing with them challenges and opportunities for economies around the world. In the context of Mercosur, an emerging strategy has been regulatory convergence, which aims to harmonize technical standards and regulations among member countries as a tool to mitigate technical barriers to trade and protect the digital consumer. The divergence of technical regulations, certifications and standards can hinder the movement of goods and services between member countries. Regulatory convergence offers a solution, as it promotes the adoption of common technical regulations and standards, facilitating market integration and ensuring the quality and safety of products and services. It makes it possible to establish common standards for data security, privacy protection and consumer rights in a digital environment. The study seeks to answer how regulatory convergence can contribute to creating an environment of trust for digital consumers in Mercosur. Using the hypothetical-deductive method, the objective of the research is to demonstrate the benefits of harmonizing the legislation of member countries to protect digital consumers, reduce barriers to trade and promote e-commerce, and intra-bloc trade in general. Legislative harmonization in Mercosur is an essential strategy to promote economic integration and competitiveness, while ensuring the quality and safety of products and services, guaranteeing a positive experience for the digital consumer in the region.