ULYSSES AND THE SONG OF THE CONSTITUTIONALISTS: AN ANALYSIS OF THE THEORY OF PRE-COMMITMENTS BASED ON THE WORK OF FRANÇOIS OST

Abstract

One of the devices used by jurist to explain legal concepts and justify legal-political positions consists of transposing passages and figures from literature and mythology to the field of law. In the context of Constitutional Law, the encounter between Odysseus (Ulysses), king of Ithaca, and the Sirens upon returning from the Trojan War, as described in Homer's Odyssey, is an example of this strategy, which gained notoriety after the book “Ulysses and the Sirens: Studies on Rationality and Irrationality” (1979), by Jon Elster. The Norwegian philosopher points out that, based on the parallel with the experiences of the Greek hero, Constitutions would function as instruments of precommitment of a given political community against future temptations to exercise power arbitrarily. The passage also serves as a metaphor justifying the existence of substantial limitations to the derived constituent power of reform (power of amendment), that is, constitutional topics that cannot be the subject of discussion through constitutional amendment, since they are immutable (petrified or unamendable clauses). Thus, based on the notes from the work of jurist and philosopher François Ost, this article aims to identify the contributions of the Belgian author to the debate on the Constitution and the material limitations to the power of reform, considering, for this purpose, the constitutional paradox of change vs. continuity inserted in the philosophy of time.