Constitutional Changes in the “Smend School of Thought”

Differences Between the perspectives of Hsü Dau-Lin and Konrad Hesse

Abstract

This is an investigation about the differences and similarities in the theories of Hsü Dau-Lin and Konrad Hesse about informal constitutional changes in the 20th century. In Brazilian literature, there is a critical argument about the use of Hsü Dau-Lin's theory in constitutional jurisprudence. By means of the hypothetico-deductive method (Popper), the present research opposes the criticism of theoretical outdatedness and develops a different hypothesis: although they share common starting points, Hsü Dau-Lin's and Konrad Hesse's theories have different problems and purposes. In order to discuss and seek to refute the hypothesis, an analysis of the theoretical context of the "Smend School" is developed, as well as a detailed examination of the arguments of the two jurists. At the end, the article develops a comparative analysis of the constitutional theories and reflects on possible repercussions for the reasoning of judicial decisions in Brazil. Among the results achieved, besides the bibliographical contribution, the article exposes dogmatic possibilities of alerting to the risks of inadequate juridical reasoning when such distinctions are not understood in the theories used, guiding the practice of Constitutional Jurisdiction.

 KEYWORDS: Informal constitutional changes. Legal Interpretation. Smend School of thought.