PUBLIC HEARING IN THE BRAZILIAN JUDICIAL REVIEW: AN ISSUE OF FACT OR OF LAW (original) (raw)
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This Article engages in an empirical analysis of the counter-majoritarian role of the Brazilian Supreme Court, the Supremo Tribunal Federal (STF), in terms of its sharp contrast with the aim of attracting wider participation from civil society in public hearings. Public hearings are an important judicial tool that have recently been introduced and that may influence foreign constitutional courts. A public hearing is a procedure in which the STF can hear experts, scientists, professors, civil servants, and even ordinary citizens when a Justice Rapporteur seeks to elucidate a specific technical aspect of a case, a controversial social issue, or an issue in a field that is generally unfamiliar to the presiding judge or judges. This research aims to address the influence of these public hearings on the deliberation process of the STF based on the democratic theory of representation. First, Section B outlines the main premises of the debate, elucidated the purposes and findings of public hearings. Next, Section C presents a theoretical approach addressing deliberation and representation to explain how information obtained in public hearings might improve the STF’s adjudicative process. Section D outlines the chosen criteria and methods for the empirical research; this will demonstrate that public hearings in the STF are not working as envisioned. Lastly, to offer qualitative insight, Section E carefully examines two of the eighteen public hearings analyzed. The Article concludes that the STF has much work to do in terms of rethinking and improving the functionality of public hearings.
Nuove AutoNomie N.1/2018 - issn 1122-228x, 2018
This article analyzes the new interpretation and application of law introduced by the centrality of human and fundamental rights in the second half of the twentieth century, which led the preponderance of the judiciary in moral and political decisions of the State to assume the role of judge-made-law, which is traditional to Common Law systems. When the law is interpreted, the rule only exists in practice; therefore, legal security can no longer be found in written texts. This work also advocates the use of the doctrine of stare decisis, which, in turn, is compatible with Dworkin’s model of law as integrity, for the guarantee of legal certainty, predictability and stability of judgments. For this reason, the work brings the systems of civil law and common law within the constitutional jurisdiction, particularly in the constitutional review based on human or fundamental rights. To support the thesis, the work indicates that the material fundamentality of human rights has moral content and serves as a bellwether for judicial review in both systems, whether implied or not in a written constitutional document. Additionally, from the study of Dworkin’s “law as integrity”, this work concludes that it is possible to adopt the doctrine of stare decisis and apply the value of integrity in adjudication in the Brazilian Constitutional Jurisdiction, which will ensure consistency, stability, predictability and judicial security of its decisions. Key words: Civil Law andCommon Law; Judicialization of Politics; Contemporary Society; Brazilian Constitutionalism; Human Rights; Integrity; Certainty in Law.
DIALOGICAL CONSTITUTIONALISM MANIFESTATIONS IN THE BRAZILIAN JUDICIAL REVIEW
The exponential growth in judicial review in Brazil, compared with the international scenery, is not out of tune – and it has a direct relation with many Brazilian constitutional features. An analytical text (with over 400 articles) and a large spectrum of fundamental rights, provide an ambience that favors highly intense controversy about State obligations in providing goods and public services, or even about the possible tensions that may arise between those same rights. The Brazilian Supreme Court faces that unmanageable number of lawsuits, notably related with claims regarding the non-granting of socioeconomic rights. That discussion give rise to intense debate over sensible themes like tragic public choices, minimum core in social rights, the necessary preservation and improvement in human dignity; all of those examined taking into account budgetary limitations as a backdrop. That scenery is leading the Brazilian Supreme Court to some kind of experimentalism in the designing of its own rulings, applying techniques that can be easily associated with many manifestations of the so-called dialogical constitutionalism. Recently, the Brazilian Supreme Court has used at least two strategies in tune with dialogical constitutionalism: the encouragement of institutional dialogue with the Legislative branch trough a constitutional action called mandado de injunção (writ of injunction); and the openness to social dialogue materialized mainly by public hearings. All those experiences reveal that granting socioeconomic rights as a distributive justice goal requires a dialogic strategy in judicial review, in order to provide progressive implementation, preventing inequality. Still, those dialogic provisions face serious obstacles related with the menace of a merely symbolic use by the Judiciary and with a path of substitutive deliberation again by the Judiciary leading to reinforce Legislative inertia, social alienation from the debate and undermining democratic accountability. Adopting a dialogical constitutionalism model in Brazil might be a proper solution to allow its system to reach the functional development of the constitution’s goals – but it requires a deeper theoretical reflection. The paper, pointing out flaws in the occurred experiments held by the Brazilian Supreme Court intend to contribute to improve the initiative.
ANAMORPHOSIS – Revista Internacional de Direito e Literatura, 2019
This paper’s main objective is to present, based on the Shakespearean play Measure for Measure, and the hermeneutical observations of Cesare Beccaria, the necessity of rethinking the role of the court in the criminal procedure. In order to do so, a qualitative research was adopted, as well as a bibliographical-documentary analysis, insofar as it dealt with scientific articles and doctrinal texts, as well as legislative documents and judicial decisions, using the deductive method. The undeniable contribution of literature to the juridical science is thus made visible, as it makes possible a strong critical subversion, besides portraying cultures and also working with interpretation. In this sense, after the synthesis of the Shakespearean plot, two models of judgments, objectivist and subjectivist, were visualized, which facilitates the debate about the magistrate’s role in the criminal process. This same logic was applied by Beccaria in On Crimes and Punishments, in which the author dismissed any kind of judicial voluntarism, and attributed to the judge the obedient execution of the written law. Thus, it was found that, since the constitutional reading of the criminal process is intrinsic to democracy, it is incumbent upon the magistrate to construct and maintain the process as a space for effecting guarantees and rights of the accused, so as to be a true spectator. Finally, the excessive emphasis on court decision results in a real disassociation with the accusatory system, as, by ignoring the semantic limits of the legal text, except in the case of constitutionality / conventionality control or in favor of the defendant, it performs a vulgar arbitration, which undermines the constitutional instrumentality
Has the Brazilian Supreme Court (STF) used formal arguments to evade the judgment of conflicts submitted by the concentrated judicial review? Over the past 20 years, the Supreme Court has denied trial to a growing number of cases, citing the presence of formal defects, mainly due to the so-called incidental " lack of grounds": when, owing to the delay in assessing the conflict, alluded legal standard ceases to exist or have effect. This research starts from the Bickel's hypothesis (1962): courts deliberately use passive virtues – self-restriction techniques, usually of procedural nature, which provide the court with the option to avoid the assessment of a case – in order to seek to understand the "lack of grounds" institutional phenomenon. In this sense, data from the Brazilian Supreme Court's on the cases on which the "lack of grounds" was harvested were subjected of statistical inferences, in order to explain, through modeling, this omission behavior of the Court.