Introduction
In the exchange excerpted below, two professors in one of the most prestigious universities in the world discuss the role of the Judiciary branch and Supreme Court in democracies.
Both are progressive and committed to social development. The first interlocutor believes that only the Legislature should be able to bestow rights and to activate social progress. The second thinks that the Legislature should haveL.R. Barroso (*)
Supremo Tribunal Federal, Praca dos Tres Poderes, Brasilia, DF 70175-900, Brazil
e-mail: gabmlrb@stf.jus.br
© Springer International Publishing Switzerland 2016 71
T. Bustamante, B.G. Fernandes (eds.), Democratizing Constitutional Law,
Law and Philosophy Library 113, DOI 10.1007/978-3-319-28371-5_4 the first duty to act; however, if it fails to do so, that the power to act should then shift to the Judiciary.
- Professor 1: “In the long run, through the Legislature, people will make the right choices, thus guaranteeing the fundamental rights of all, including the right of a woman to terminate a pregnancy she does not want or of homosexual couples to freely express their love. It’s just a matter of waiting for the right time”.
- Professor 2: “And until then, what should we say to same-sex partners who wish to live out their affection and a shared life project now? Or to the woman who wants to interrupt a non-viable pregnancy which causes her great suffering? Or to a black father who wants his child to have access to an education that he, himself, never had? [Should we say-] ‘Sorry, History is running a bit behind; come back in one or two generations’?”.1
This work deals precisely with this duality of perspectives. It explores the subject of the representative role of supreme courts, their enlightening function, and the situations in which they can legitimately drive History forward.
Written for a seminar presented in Belo Horizonte, Brazil, this study makes use of some aspects of the Brazilian experience and case law. The argument put forth, however, is based on international literature and aspires to universal legitimacy, being valid in a good number of contemporary democratic constitutional states.The conclusion reached is quite simple and easily demonstrated, although, to some extent, contrary to conventional wisdom. In some scenarios, because of the multiple conditions that affect or paralyze the majoritarian political process, it is up to the Supreme Court or the constitutional court to guarantee the majority rule and the same dignity to all citizens. Majoritarian politics, led by elected representatives, is a vital component of democracy. But democracy is much more than the mere numerical expression of a greater number of votes. Beyond this purely formal aspect, democracy has a substantive dimension, which entails the guarantee of values and fundamental rights. Alongside these formal and substantive dimensions, there is, still, a deliberative one, made up of public debate, arguments, and persuasion. Contemporary democracy therefore requires votes, rights, and reason. This is the subject of this essay.
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