“In general, ambitious judges philosophically are bad judges.” The statement is, in “The Politics of the Rule of Law”, classic about the intersection between politics and the empire or rule of law. The question acquires paramount importance in a framework in which the absence of self -restarting the judges of the case of everyday discussions.
The last example comes from, which mocked – in a critical conjuncture – from the repercussions of his decision on. From it we also learned the week before how the Brazilian political system would work: “No political force builds hegemony. With the structured system as it is, no political force rules the country.” In what was followed by the proposal of changes as if it were political agent. Here ambition is not just philosophical. .
It continues: “The requirement for grounded public justifications is not a demand for great philosophical sophistication.” It is a parsimonious definition. It does not exclude the judge’s analytical sophistication that may be a recognized academic; Rather, it delimits the form of public justification of decisions, which has great impact on its legitimacy. “It is a requirement of justification with reference to the shared values and practices of legal culture.” But how to talk about legal or constitutional culture when jurisprudence is volatile and do interpretations depend to a large measure of the judge, as in recent decisions of?
There is cry for self -restarting. But from the point of view of a positive analysis, what effectively matters is the incentive structure of the actors involved. The hyperprotagonism of judicial agents has structural causes. As they argue, when rival forces control the executive and legislative powers, the institutional conditions for the autonomy of the judiciary are expanded. And vice versa.
The degree of hegemonic control of the executive over the judiciary in Brazil is the smallest of one. And that is independent of institutional design. Historically, Brazil, and copied the formula of the federalists of appointment of the judges of the Supreme Court by the executive, ratification by the Senate and vitality. In the others, the choice of the legislature (usually controlled by the executive) prevailed. Except Uruguay, this did not result in independent courts, on the contrary. Although mandates – in some countries they have reached just three years – import.
In Brazil, it did not escape, in 1966, that despite the military coup the regime accepted habeas corpus in the name of a political enemy (Miguel Arraes) and opted for the Roosevelian solution to increase the composition of the court, and not to dismiss the Tour Court court as it was common in the region. From 1988, the autonomy (relative) was brutally magnified by the court’s criminal jurisdiction (as I showed) and by the personalistic standard of nominations. The rest is known: Hypertrophied Court and Judges.
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