THE HABERMASIAN DEMOCRATIC LEGITIMACY OF BRAZILIAN JUDICIAL REVIEW RISK OF EMPTYING

• Main Authors: Orlando Sampaio Silva, Flávia Pessoa
• Format: Article
• Language: English
• Published: Universidade Federal do Rio de Janeiro 2017-08-01
• Series: Revista de Estudos Institucionais
• Subjects: Jurisdição Constitucional; Legitimidade Democrática; Neoconstitucionalismo; Pluralismo
• Online Access: https://www.estudosinstitucionais.com/REI/article/view/139

This article analyzes the tension between de constitutional jurisdiction and democracy on the bases of a discursive theory, which prioritize an open process of interpretation. The study shows the failure of a democratic legitimation of the constitutional jurisdiction only lined on well motivated decisions. The objective is to inquire about the existence, or not, in Brazil, of a discursive legitimation by means of a rational and community. The issue is addressed by the deductive method, through doctrinal and jurisprudential research. The article aims to demonstrate that Brazil needs to improve the mechanisms of popular representation on the constitutional jurisdiction. Only the, we can talk about a democratic and pluralistic legitimation.