Theses defended

O transconstitucionalismo de inclusão social da OIT e o caso português

Marina Henriques

Public Defence date
September 12, 2022
Doctoral Programme
Law, Justice, and Citizenship in the Twenty First Century
António Casimiro Ferreira
The sociology of constitutions, with its internal paradigmatic heterogeneity, is essential to understanding the complexity of modern societies in crisis and to the promotion of fundamental rights. This perspective diverges from a formal understanding of the relationship between law and society. In opposition to the canonical constitutional normativism of the legal positivism and liberalism approaches, it affirms the "sociological turn" to the study of constitutionalism. In the current socio-political context in Portugal and in Europe, this reflection recognises the importance of constitutions as a political pact that structures democratic societies, but also as an interconnected element vis-à-vis the different sociological dimensions of societies. Societal constitutionalism in the broad sense, by articulating the national and global scales of analysis, within the framework of the recognition of the pluralism of institutions and fundamental rights, raises the study of the dynamics and patterns of relationship between international and national realities in view of transconstitutionalism.

Transconstitutionalism, as a branch of the sociology of constitutions, is the theoretical and analytical platform from which I study the pattern of relationship between Portugal and the International Labour Organisation (ILO), based on the endogenisation of the ILO normativity in the Portuguese political-labour reality. This reflection brings to the debate the significance of the ILO normativity and its principles for the disputes and the consolidation of labour rights. It is about knowing the influence of the ILO's transconstitutionalism in Portugal, considering its relevance for the political-legal conformation of a framework of transformation, application and mobilisation of labour rights. The socio-legal communication between Portugal and the ILO is established within a plural and sociological definition of rights. This definition combines the multilevel dynamics of endogenisation, application and mobilisation of ILO normativity in the world of work in Portugal, assessing its impact and effectiveness.

The main objectives of this research are threefold. Firstly, to reflect on the potential of the sociology of constitutions for the analysis of the influence of ILO transconstitutionalism on the world of work in Portugal. Secondly, in relation to the influence of ILO transconstitutionalism, to analyse the transformations occurred in terms of the reconfiguration of labour regulation. Thirdly, to assess the degree of interpenetration of political-legal regulation in social relations, in this case, the articulation between national practices and the ILO international standards, considering the tension between law in books and law in action as an indicator. The intersections between ILO normativity and the national political-legal dimension are analysed, namely those resulting from the incorporation of international standards into national law through the ratification of conventions. As regards the promotion of the effectiveness of national standards by the ILO, the effects of the mobilisation of special control mechanisms (complaints and representations filed against national states) on the state, the law and the labour relations system are analysed. Finally, the symbolic use of the ILO normativity within the framework of parliamentary disputes concerning labour rights is studied.

Keywords: sociology of constitutions, transconstitutionalism, ILO, ILO normativity, mobilisation of law