STADTLUFT MACHT FREI?

THE NEOFEDERALISM, THE BRAZILIAN HOME RULE AND THE LIKEHOOD OF A MUNICIPAL CONSTITUTIONAL LAW IN BRAZIL

Abstract

The issue of the legal nature of municipal charters, despite the prevailing literature and jurisprudence rejecting its constitutional character, seems worthy of greater attention in Brazil. The review of the discussion on the subject highlights the fragility of the arguments in the controversy, and the scarce literature dedicated specifically to the issue suggests the existence of a gap in the body of knowledge in the field of Constitutional Law that deserves to be filled. Starting from a basic bibliographic and documental resarch, a historical-comparative and, especially, inductive methodology, the present study seeks to advance the frontier of knowledge regarding the previously mentioned problem. The article critically explores the discussion about the legal nature of municipal organic laws in Brazil – namely, the constitutional or merely legal status of the municipal basic laws. It retrace the rival doctrines on municipal self-government in the USA – Dillon’s Doctrine and Cooley Doctrine – and highlights its possible reception by the constitutions of the States of Santa Catarina and Rio Grande do Sul in the brazilian Old Republic. It explores the federalization of the charter regime – Brazilian Home Rule – since the 1988 brazilian Constitution. It compares the autonomy regime of primary and secondary subnational entities in Brazilian neo-federalism in terms of crucial aspects, such as competences, autonomy, territorial integrity and intervention. It applies Patrícia Popelier's Dynamic Theory of Federalism to Brazilian subnational entities, comparing the scores of States, Federal District and municipalities in the indicators of material, procedural and homogeneity autonomy. Finally, it explores the possibilities of municipal constitutionality review before the restrictions arising from the lack of express competence of the municipality to legislate on process and procedure and the absence of a municipal judicial power, evidencing the existence of embryonic mechanisms of municipal political review of constitutionality. It concludes by the high degree of similarity between the constitutional regime and the degree of autonomy of primary and secondary subnational entities, and by the possibility of recognizing the constitutional nature of municipal organic laws.