Introduction

Despite of the controversial verdict issued by the North American Supreme Court in the case Bush v. Gore, there were no further reactions from the democrats even though serious questions were raised regarding the political-partisan character that impregnated the ruling that favoured the republican candidate.

Nonetheless, it is fair to say that this phenomenon has been occurring almost on a global scale. The emergence in several countries of a reallocation of power from

B.G. Fernandes (*)

Universidade Federal de Minas Gerais, Avenida Joao Pinheiro, 100,

Belo Horizonte, Minas Gerais 30.130-180, Brazil

e-mail: bernardogaf@yahoo.com.br

© Springer International Publishing Switzerland 2016 147

T Bustamante, B.G. Fernandes (eds.), Democratizing Constitutional Law,

Law and Philosophy Library 113, DOI 10.1007/978-3-319-28371-5_7 the Legislative and the Executive to the Judiciary is and undisputable fact. This, as a matter of fact, does not come as a surprise to any informed participant of contem­porary debates about law, politics and democracy in the context of contemporary constitutionalism.

In the specific case of Brazil, it has been initially observed that after the Constitution of 1988 a conservative interpretative model that is typically formalist has advanced, connected to a strict separation of law and politics and a self-restraint perspective in the application of the law. However, at the end of the nineties, in the twentieth century, this interpretative model has been gradually “conjugated” with the defence of an “efficacy-oriented constitutionalism” and with a more energetic action by the Judicial Branch through the occupation of a presumed “empty space” left by omissions by the other branches (Legislative and Executive). This led to an expansion of the activity of the Judiciary, as well as the Federal Supreme Court, in the pursuit of the more substantial review of constitutional rights, based on the idea of human dignity. This more proactive attitude of the courts, in certain pivotal cases, lead to a new conception of the role Judiciary (which allows a judicialization of politics and social relations), and turned the debate about the limits of the author­ity of the court, which up to this point was limited to the North American doctrine, into a very relevant theme on Brazilian territory.

As result, the famous “counter majoritarian difficulty” popularized by Alexander Bickel, who questioned how “a small minority of nine justices, that were not elected through a democratic electoral process, could interpret and apply the North American Constitution” (Bickel 1986), has become a recurring subject on debates among constitutional theorists outside the circle of North American jurists.

Accordingly, several issues are raised, such as, for instance: How far the consti­tutional jurisdiction can go and what are its action boundaries? To what extent the judicial review is democratically legitimate? Can the constitutional review autho­rize the Judicial Branch to act in a way that invalidates normative acts by the Legislative or even Constitutional Amendments? What is the appropriate relation­ship between the Judiciary Branch and the Legislative Branch with regards to the interpretation of the Constitution? Who has supremacy over the Constitution? Who should have the “last word” regarding reasonable disagreements in society, regard­ing the great issues related to political morality in societies characterized by reason­able pluralism ?

Is there an alternative to the question of who should have the “last word” regard­ing the interpretation of the Constitution, or are we condemned to an either-or alter­native between a supremacy of the Judiciary or the Parliament? Do we need a sytem of Strong Constitutional Review? Does it save us? Does it redeem us and protect us against eventual abuses and arbitrariness by an occasional majority (the so called protection against the tyranny of the majority)?

The objective of this text is not to comprehensively answer all the questions mentioned above, but rather to point out the inadequacy of the assumption that we should that defend a “supremacy” either of a court or a parliament in order to answer them.

Dialogue theories emerged in academic debates regarding Constitutional Law as an attempt to offer a different viewpoint about controversies regarding the role of Constitutional Courts and other political players within the scope of the interpreta­tion of the Constitution. Accordingly, they endeavour to challenge the assumption that one institution - either the Judiciary or the Legislature - should have the “last word” about the correct interpretation of fundamental rights, on the ground that such assumption overlooks the potential for interaction between or among institu­tions in a constitutional democracy.

In this sense, the distinctive feature of the theory of dialogues is the pursuit of a broader interlocution among the Courts and other constitutional players (particu­larly Parliaments), so that the presumed “judicial monopoly” in the interpretation of the Constitution is mitigated or even terminated, making the Judiciary and the Legislative partners (be it directly or indirectly) in the pursuit of a better settlement of constitutional issues, particularly those related to fundamental rights, in which reasonable moral disagreements are typical.

Therefore, the road to be travelled in the text will depart from the debate about judicial supremacy versus the supremacy of parliament, having as guiding principle Jeremy Waldron’s criticism of the judicial review, to, later on, take a critical stand on Waldron’s main theses about judicial review on the basis of the theory of consti­tutional dialogues. The core argument of the text is that the criticism to the judicial review developed by Jeremy Waldron can contribute to a defence of the theory of constitutional dialogues. The work concludes making clear what the dialogical per­spective defended here entails.

7.2