281.5 Constitutional courts and the instrumentalization of legitimacy

Thursday, August 2, 2012: 11:45 AM
Faculty of Economics, TBA
Henrique RANGEL , Universidade Federal do Rio de Janeiro / Faculdade Nacional de Direito, Rio de Janeiro, Brazil
Carlos BOLONHA , Department of Public Law, Universidade Federal do Rio de Janeiro / Faculdade Nacional de Direito, Rio de Janeiro, Brazil
Maíra ALMEIDA , Universidade Federal do Rio de Janeiro / Programa de Pós-Graduação em Direito, Rio de Janeiro, Brazil
Democratic institutions fulfill their constitutional role in a political activity of State. The Constitutional Courts present itself as the institutions which better prosecutes that function. This study investigates, in particular, the Brazilian Supreme Court and its activity as guardian of the Constitution. Considering the crescent importance of new mechanisms in the constitutional jurisdiction, some foreign institutions help this analysis, as U.S. and Canada Supreme Courts. The establishment of a constitutional order, of political rules and the promotion of a system of rights by Constitutional Courts are situations which, traditionally, reassemble difficulties in the democratic ground, resulting in significant wear. The central object of this research is the phenomenon which had been rugged recently supplying the democratic deficit of Constitutional Courts, the instrumentalization of legitimacy. These mechanisms as consequence present, at least, two distinct forms: participative-inclusion, and dialogical mechanisms. Both permits to recognize the Courts in an superior position in the definition of deliberative parameters, eliminating, although, the possibility of characterizes a judicial supremacy design. In Brazil, there are examples as amicus curiae and public audiences. In addition, an institutional activity compatible with a cooperative commitment requires the deliberative parameters elaborated reinforcing their legitimacy degree. On one hand, a Court actuating in political issues of outstanding disagreement without the support of instruments increasing its democratic degree is more susceptible to the wear vis-à-vis collectivity and other institutions. On other hand, the Court attending the crescent social demand in achieve basic rights and relevant decision-making at the same time maintaining open to participation and dialogue with other institutions may had a highly recognize of their legitimacy. Is necessary to verify the importance and fitness of Courts in materialize this task, analyzing their institutional capacities. It is also necessary to identify these mechanisms of instrumentalization of legitimacy in a democratic system of deliberation.