Legalization of Politics and the Judiciary’s Role in Democracy
Unit 3 – Justice and Politics (1)
Legalization of politics, democratic constitutionalism and separation of powers (Gisele Cittadino)
Objective: Explain the relationship between law and politics in Brazil.
Legalization of political or judicial activism. Central theme. Accountability of judges on the basis of democratic constitutionalism. Expansion of the Judiciary (general concept of legalization of politics) in the context of contemporary constitutional democracies (context). Consequences: definition of constitutional jurisdiction, questioning of traditional principles and the emergence of new public space as opposed to traditional public space.
Reviews: Yesterday and Today
Law and Politics: Respect. Visions and Models
1) Substantive Constitutional Democracy (Dworkin)
Model and civic sponsorship of civic republicanism, the principles of community, historical and cultural values, practices and democratic political traditions. USA.
2) Democracy Constitutional Procedural (Habermas)
Model of patriotism procedural. Historical rupture. Shared ethical views. Consensus through criticism and self-criticism. Traditions that shape identities undemocratic. Commitment to the democratic rule of law and with its universalist principles.
Note: Reality: expression of what is produced independently of our will. Add to the facts of the daily value judgments, given that we are not indifferent to the world of facts. According to the judgments, make decisions and act.
The legalization of politics is a fact that occurs in several countries (Brazil, USA, for example), however, are different contexts, which results in different ways for the expression. In Brazil, the legalization of politics was present, mainly in two periods: end of military dictatorship and adoption of the Constitution 1988 the ie in periods of Brazilian democratization. Thus, democracy has become the responsibility of the judiciary.
Note: The law is revealed and stated when the courts said the law through the interpretation of laws and codes.
In the context of the century, it is impossible to fully distinguish the right policy, given that the law has been produced by the judiciary based on the relationship between law and politics. Thus, we have the notion of prosecution policy, which reflects an expansion of the judiciary. There is an interpretation that says, however, that the judiciary, because the division of three powers, has limited power law positivised in laws and codes, the jurisdiction (the right to say, a traditional characteristic of the Judiciary). That is, there is a limit to what the legislature has already formulated. According to this interpretation, the Judiciary makes no contact with the world, with reality. It is noteworthy, however, that there are practices, values and traditions out of codes.
Thus, the judiciary is assigned a new feature (besides the court): instrument and means of democratization of reality. This demonstrates the failure of agencies that traditionally accounted for democracy. If democracy is considered equal, the Judiciary will produce equal division, which takes into account the history, politics, culture, in short, the world, meeting the classic conception of the judiciary as a machine.
Consequences of the Legalization of Politics
If the judiciary seeks to democratize the judiciary itself on one side positivised defends the Constitution and on the other, the realization of rights. Thus, there is no longer the empire of the Law
3.1 Justice and Politics – Cont. (See diagrams)
Our goal: to explain how democratic constitutionalism in Brazil?
Value Law and Policy
Politics: the judiciary does not decide more arrested; Interpretation extra-legal.
Consequence arising from the subject justice as to the legality principle and criteria of interpretation and revelation of the law is that jurisdiction is carried out independently from the world of facts -> phenomenon whereby there is a split between the whole and parts. The judiciary knows no conflicts in their relationship with the whole, but rather put up with what is established in laws and codes. There is no relationship therefore between conflict and context. Subsumption. Regulation between the concrete and abstract.
Conflicts are seen from the abstract, of what’s in laws and codes. To establish the relationship between what happens and what specifically is abstractly positivised codes, it is necessary that the phenomenon is removed from the context. Abstraction, individualization. Individualization of conflicts: conflicts to be seen regardless of their relationship with the whole. Break.
Constitution
Constitution: expression of a process, the political project.
Law as a result of court action from the judiciary. The Judiciary has decided, however, from how the Constitution is viewed and interpreted. Relationship between law and politics, which hinges on the one hand the judiciary with his decision-making power and others, the Constitution, which underlies these decisions. Jurisdiction on the basis of the Constitution. Their own laws and codes are interpreted according to the Constitution. Thus, we observe the coupling of the judicial and political systems. Two systems are opening and closing, relating.
Dworkin and Habermas
Both are concerned to explain, simultaneously, democratic constitutionalism. Democratic state.
Habermas: procedural (adjective democracy)
Dworkin: noun
Note: The authors describe democracy in different ways, therefore, give different meanings to the Constitution.
Purpose
To recognize that the Constitution and constitutionalism refers to the context, origin.
Traditionally, the Constitution is seen as the right must be established by Parliament as the legislature shall make the ordinary law. That is, how it should be law (political law). There is, therefore, the Constitution and politics. Moreover, laws and codes represent the law as it is. Thus, we have the right as an expression of the Constitution – which requires the principles of democracy – not the laws and codes. Constitutional Hermeneutics. New form of positivism? Neopositivism?
Problem: The judiciary produces democracy. Democracy implies freedom of choice by the people (voting). However, the judiciary is not chosen by the population.
Note: In the gaps of the law is notorious for definition by the judge in a political way, considering that there is no right, effective, defined. There is then a space between the Constitution and establishment of standards by the judiciary.