On the Limits of Constitutional Adjudication: Deconstructing Balancing and Judicial Activism

Description

Juliano Z. Benvindo investigates the current movement of constitutional courts towards political activism, especially by focusing on the increasing use of the balancing method as a “rational” justification for this process. From the critical perception of the serious risks of this movement to democracy, the book takes as examples two constitutional realities, Germany and Brazil, in order to discuss the rationality, correctness, and legitimacy of constitutional decisions within this context. Through a dialogue between Jacques Derrida’s deconstruction and Jürgen Habermas’s proceduralism, the author confronts Robert Alexy’s defense of the balancing method as well as those two constitutional realities. This confrontation leads to the introduction of the concept of limited rationality applied to constitutional democracy and constitutional adjudication, which affirms the double bind of history and justice as a condition for a practice of decision-making committed to the principle of separation of powers. Front Matter....Pages i-xx Front Matter....Pages 1-1 An Approach to Decision-Making....Pages 3-30 Balancing Within the Context of German Constitutionalism: The Bundesverfassungsgericht ’s Shift to Activism....Pages 31-81 Balancing Within the Context of Brazilian Constitutionalism: The Supremo Tribunal Federal’s Shift to Activism....Pages 83-131 Front Matter....Pages 133-133 The Aim to Rationalize Balancing Within the Context of Constitutional Courts’ Activism....Pages 135-159 When Différance Comes to Light: Balancing Within the Context of Deconstruction....Pages 161-241 When Procedures Towards Mutual Understanding Come to Light: Balancing Within the Context of Proceduralism....Pages 243-329 Front Matter....Pages 331-331 Between Différance and Intersubjectivity: The Concept of Limited Rationality in Constitutional Democracy....Pages 333-364 Between Différance and Intersubjectivity: The Concept of Limited Rationality in the Realm of Constitutional Adjudication....Pages 365-405 Back Matter....Pages 407-421