Abstract

By request of Brazilian jurists Flávio da Silveira and Roman Polanski, in 1933 Kelsen expressed an opinion with regard to the restrictions contained in the decree of April 7th of the same year, whereby Brazil's provisional government established and regulated the National Constituent Assembly, charged with drafting the new constitution. In accordance with the author's methodological premises, anchored to legal positivism and to the impossibility of acknowledging full sovereignty to the State organs, Kelsen maintains that the powers of this Assembly merely descend from the decree of the Brasilian provisional government and it find their own limitations. Indeed the character of original non-derivative powers belongs if anything to the provisional government as organ sprung from the Revolution and thereby enjoying effectiveness.