Constitutional Courts and Deliberative Democracy

Mendes, Conrado Hübner

doi:10.1093/acprof:oso/9780199670451.001.0001

Cited by 77 publications

(37 citation statements)

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“…These discussions can be analyzed in: BARBOZA, 2014;BARROSO, 2016;CHUEIRI, 2006;CLÈVE, 2012;GARGARELLA, 2006, andMENDES, 2013 IN SEARCH OF THE BRAZILIAN CONSTITUTIONAL ETHOS: A COMPARATIVE STUDY OF LIBERAL CONSTITUTIONALISM…”

Section: In Search Of the Brazilian Constitutional Ethos: A Comparatimentioning

confidence: 99%

Insearchofthebrazilianconstitutionalethos:acomparativestudyofliberalconstitutionalism

Conceição¹

2019

ABDCONST

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This article argues that the Brazilian constitutional ethos is constructed upon an asymmetrical distribution of powers which, if not addressed, imposes a hindrance to the protection of democracy and the human rights recognised in the constitutional pact. The establishment of the 1988's Constitution in Brazil represented a strong political stance in which the country sought to overcome its democratic deficiencies and human rights violation practices after experiencing an intense military dictatorship. Thus, the constituent assembly was strongly influenced by the liberal perspective of constitutionalism, establishing a system that defined constitutional rights and principles, recognizing their normative force within the legal framework of the state. On the other hand, liberal constitutionalism tends to suppress the political nature of the constitution. How this development impacts the exercise of power in Brazil and the United States? This article proposes to analyse critically how the configuration of the strictly liberal perspective of constitutionalism impacts Brazilian socio-political structure, considering both the tendency of liberal constitutionalism to overshadow the political aspect of the constitution and the specificities of Brazilian distribution of power within the state.

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Section: In Search Of the Brazilian Constitutional Ethos: A Comparatimentioning

confidence: 99%

Insearchofthebrazilianconstitutionalethos:acomparativestudyofliberalconstitutionalism

Conceição¹

2019

ABDCONST

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“…In practice, Petersen concludes, none of these strategies will lead to optimal outcomes and judges will need to employ a combination of different strategies. Petersen's contribution links to an associated literature on the deliberative capacity of constitutional courts, and the impact of judicial rulings on the wider democratic process (see Mendes, ).…”

Section: The Judicialization Of Politicsmentioning

confidence: 99%

Judicialization and Health Policy in Colombia: The Implications for Evidence‐Informed Policymaking

Hawkins¹,

Rosete²

2017

Policy Studies Journal

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The existence of the tutela mechanism and the endemic weaknesses of the legislative and executive branches of the Colombian state have led to a de facto judicialization of health policymaking. The objective of evidence-informed policy is to identify effective policy approaches and legitimize policy decisions. Questions arise about the basis on which judges take decisions with significant policy and budgetary consequences, and the forms of evidence they use to inform these. This article focuses on the extent to which courts take account of research evidence in judgements and assesses the implications for health policy in Colombia. We place these discussions in the context of a broader analysis of the ongoing reforms to the Colombian health system and the most recent literature on evidence-informed policymaking. The judicialization of health policymaking offers a suboptimal means to achieve the objective of evidence-informed policymaking. The emergence of a range of evidence advisory bodies in recent years is an attempt to address the issue of judicialization alongside the other constitutional and political weaknesses Colombia faces.

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“…However, the philosophy of constitutional judicial review should be brought under review, so the traditional jurisdiction of constitutional courts is extended to set up a comprehensive judicial system that protects individuals’ fundamental human rights. Constitutional courts must also react positively to the significant changes in the scope and nature of relationships that govern people in the state and public authorities, as a response to the contemporary economic, social and political circumstances, nationally and internationally (Mendes, ).…”

Section: Future Role Of the Constitutional Court: What Is Expected Frmentioning

confidence: 99%

“…A further role for constitutional courts is to encounter contemporary and universal threats that are hindering a decent enjoyment of human rights. New types of violations and trespasses on fundamental rights and liberties are causing serious concerns to the world nowadays which were never known to the drafters of old constitutions and to the founders of the principle of constitutional judicial review, and although these risks are more visible and take place on a regular basis, the constitutional courts so far have failed to confront them (Mendes, ). They have retained their old tradition of merely overseeing the constitutionality of laws and regulations against provisions of the constitutions, without showing any active response to the increasing threats from which the people in the world are suffering, both in their judgments of unconstitutionality of laws issued to deal with them, as well as in scrutinizing governmental decisions enforcing unjustifiable limitations on the exercise of human rights based on such threats (Ramraj & Hor, ).…”

Section: Future Role Of the Constitutional Court: What Is Expected Frmentioning

confidence: 99%

Protecting Human Rights Through Constitutional Adjudication ‐ Jordan as a Case Study

Nasrawin

2016

Digest Mid East Studies

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This article aims at defining the role of constitutional courts in protecting the fundamental human rights of individuals, by relating the importance of constitutional judicial review and the established international standards related to the way it is performed. The study also provides an in-depth analysis of the structure and working mechanism of the new constitutional court in Jordan with regard to its main functions described in the constitution of providing oversight of the constitutionality of laws and regulations in power, and interpreting provisions of the constitution. The study concludes that current statutory provisions with respect to the court proceedings and the method of undertaking its judicial work serve as safeguards that strengthen the role of the court in promoting individuals' human rights. The study defines a vision of what is anticipated from the new constitutional court of Jordan and other courts in the field of defending human rights from the contemporary threats the world is facing, which only serve to increase fears among individuals that their basic rights are subject to serious attacks and violations.

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Constitutional Courts and Deliberative Democracy

Cited by 77 publications

References 0 publications

Insearchofthebrazilianconstitutionalethos:acomparativestudyofliberalconstitutionalism

Insearchofthebrazilianconstitutionalethos:acomparativestudyofliberalconstitutionalism

Judicialization and Health Policy in Colombia: The Implications for Evidence‐Informed Policymaking

Protecting Human Rights Through Constitutional Adjudication ‐ Jordan as a Case Study

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