Constitucionalismo e giro decolonial: ainda sobre uma Teoria da Constituição constitucionalmente adequada

Abstract

This research critically analyzes decolonial constitutionalism, contrasting its premises and proposals with Constitutional Theory and transmodern decolonial thought, with special attention to the work of Enrique Dussel. Decolonial constitutionalism argues that constitutions function as instruments of domination and, in particular, that Latin American constitutions operate as mechanisms for perpetuating coloniality and capitalism, reflecting exclusively the interests of elites. This perspective contends that the recurrent adoption of borrowed foreign constitutional models compromises the authenticity of constitutionalism in Latin America. Given this diagnosis, the thesis critically engages with this approach from the perspective of Constitutional Theory, investigating whether the criticisms and solutions presented by decolonial constitutionalism constitute a genuine innovation or merely reiterate long-standing debates in constitutional thought. This study demonstrates that the challenges identified by this school of thought have long been debated and addressed within constitutional scholarship, revealing a misalignment between decolonial constitutionalism and Constitutional Theory. Subsequently, the study examines the connection between decolonial constitutionalism and decolonial thought, distinguishing its two main branches: transmodern and anti-modernist. It is argued that decolonial constitutionalism is not anchored in the transmodern strand but rather in anti-modernist conceptions, aligning itself with postmodern currents. This alignment reveals a theoretical contradiction, given that decolonial thought was established as a field precisely through a critique of these traditions. Given these limitations, the research turns to Enrique Dussel’s Politics of Liberation to formulate an alternative conception of the constitution still within decolonial thought—but one that does not remain confined to a negative and reductionist approach. The study explores the foundations of politics in Dussel’s work, which he conceives as structured around the will to live, understanding politics as intersubjective, normative, and primarily positive, although it contains negative moments, such as the fetishization of power. Additionally, the architecture of Dusselian politics is examined, structured around principles, institutions, and political action, as well as the crises of the political system and the possibilities for transformation. Building on these elements, this study argues that Dussel’s proposal presents a more nuanced understanding of the constitution, emphasizing its constructive potential and offering theoretical tools to reassess the concept of constitution and tackle contemporary challenges.