On the Limits of Constitutional Adjudication

Deconstructing Balancing and Judicial Activism

  • Juliano Zaiden Benvindo

Table of contents

  1. Front Matter
    Pages i-xx
  2. German and Brazilian Constitutional Cultures: Constitutional Adjudication and Activism

  3. The Debate on the Rationality of Balancing

  4. The Concept of Limited Rationality

  5. Back Matter
    Pages 407-421

About this book

Introduction

Juliano Z. Benvindo investigates the current movement of constitutional courts towards political activism, especially by focusing on the increasing use of the balancing method as a “rational” justification for this process. From the critical perception of the serious risks of this movement to democracy, the book takes as examples two constitutional realities, Germany and Brazil, in order to discuss the rationality, correctness, and legitimacy of constitutional decisions within this context. Through a dialogue between Jacques Derrida’s deconstruction and Jürgen Habermas’s proceduralism, the author confronts Robert Alexy’s defense of the balancing method as well as those two constitutional realities. This confrontation leads to the introduction of the concept of limited rationality applied to constitutional democracy and constitutional adjudication, which affirms the double bind of history and justice as a condition for a practice of decision-making committed to the principle of separation of powers.

Keywords

Constitutional Courts Constitutionalism Habermas justice

Authors and affiliations

  • Juliano Zaiden Benvindo
    • 1
  1. 1.BrasíliaBrazil

Bibliographic information

  • DOI https://doi.org/10.1007/978-3-642-11434-2
  • Copyright Information Springer-Verlag Berlin Heidelberg 2010
  • Publisher Name Springer, Berlin, Heidelberg
  • eBook Packages Humanities, Social Sciences and Law
  • Print ISBN 978-3-642-11433-5
  • Online ISBN 978-3-642-11434-2