Direito à educação: competência legislativa e limites à atuação da União - aspectos internos e internacionais

• Ano de defesa: 2009
• Autor(a) principal: Vilarino, Marisa Alves
• Orientador(a): Garcia, Maria
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: BR
• Palavras-chave em Português: Educação; Competências educacionais; Interpretação constitucional; Direito constitucional > Brasil; Direito a educacao > Brasil
• Palavras-chave em Inglês: Law; Education; Educational powers; Constitutional interpretation
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://tede2.pucsp.br/handle/handle/8814

The right to education until recently was limited to the analysis by the area scholars, especially by educators, and historians. Only recently become a subject of examination in the field of law. Thus, despite the importance of the subject, there are skill a little discussion about it, with problems in the interpretation and application of educational laws. The analysis of the Educational Law, the provisions governing the matter, in a systematic way, from the Federal Constitution, infra Laws, Ordinances and Resolutions of the Board of Education, to be understanding and development of this law. The allocation of constitutional powers legislative, materials or administrative, with regard to education, follows the federal pact, but the use of powers by the extreme absorbs almost completely the constitutional powers of other federal entities. While these great advances in the 1988 Constitution, including the competing powers is to achieve as much as possible the needed decentralization, that persists with regard to education, a tremendous power exercised by the Union, notably in the production of the laws. The examination of the constitutional texts, passing by the Constitution of the Empire, shows the origin of the centralization of power in the Union, centralizing tendency which remained throughout the Republic and not managed to rupture with of the Constitution of 1988. Not only the examination of constitutional texts but also of published laws by the Union and the rule of the Ministry of Education, agency of the Executive, reveal a history of invasion of power, which does not comply with the federal pact. Next to the invasion of powers by the Union, remains the omission of states and municipalities. It´s necessary a proper interpretation of the Constitution, using for both, the main existing methods of constitutional interpretation, to an effective implementation of the rule. The interpreter, as George BURDEAU, has thus a power equivalent to the authority which made the law. This statement is relevant, taking into account the number of interpreters, the approach made by Peter HÄBERLE of the education law. This research seeks to adduce evidence reflection on the origin and the influences received by the Brazilian educational law at the beginning of the independence of the country, showing the developments in constitutional texts and the importance of the text achieved in 1988, that trend has the right to education under international . Besides the necessary proposal for a redistribution of functions in the Brazilian Federation, with a new federative pact, is pressing the proper interpretation of constitutional text, and its up to the Union to establish the general law, and up to states and municipalities making rules more specific of their education systems in local and regional level