From perpetual peace to transconstitucionalism

the universalization of human rights in the face of terrorism and punitive expansion

Abstract

This study presents a critical analysis of the concept of transconstitutionalism in the preservation and consolidation of the Democratic Rule of Law, starting from the concept of perpetual peace, as contributed by philosophers such as Kant, as a way to analyze the preservation of fundamental rights (especially human rights) within a society afflicted by discourses of punitive expansion. This punitivism is attributed to new configurations of state intervention in the face of criminal incidents such as terrorism, and how discourses of security and the War on Terror can contribute to inhibiting the preservation of rights. Thus, through transconstitutionalism, the aim is to recover the notion of the globalization of human rights, so that the legal and constitutional systems of various states do not postpone achievements so relevant to modern society, such as the constitutional recognition of the rights to freedom and protection against abusive state action. The aim is to establish a delimitation of the State's punitive action, to the point that individual liberties are not harmed by a model of state intervention based on the renunciation of freedoms in favor of a supposed right to security. In this sense, concepts originating from a Kantian cosmopolitical law, based on hospitality and coexistence among different groups, can be extremely valuable in curbing the excesses of the modern State, which is so focused more on valuing discourses of security than on preserving rights.