Separation of Powers and Judicial Supremacy: Case Analyses in Brazil
Contemporary constitutional ju¬rists notice that the burgeoning role played by Constitutional Courts regarding political and abstract topics represents a threat to the legitimate functions of the Legislative, usu¬ally composed by directly elected members. Furthermore, judicial decisions tend to affe...
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| Format: | article |
| Status: | Published version |
| Publication Date: | 2019 |
| Country: | México |
| Institution: | UNIVERSIDAD NACIONAL AUTÓNOMA DE MÉXICO |
| Repository: | Cuestiones Constitucionales. Revista Mexicana de Derecho Constitucional |
| Language: | Spanish |
| OAI Identifier: | oai:ojs.pkp.sfu.ca:article/13953 |
| Online Access: | https://revistas.juridicas.unam.mx/index.php/cuestiones-constitucionales/article/view/13953 |
| Access Level: | Open access |
| Keyword: | Constitutional jurisdiction Judicial supremacy Minority rights Jurisdicción constitucional supremacía judicial derecho de minorías |
| Summary: | Contemporary constitutional ju¬rists notice that the burgeoning role played by Constitutional Courts regarding political and abstract topics represents a threat to the legitimate functions of the Legislative, usu¬ally composed by directly elected members. Furthermore, judicial decisions tend to affect the Executive, since the budget is employed to assure the efficacy of abstract and general de¬cisions. This article studies the arguments that emphasize a trend towards a “judges’ govern¬ment”. Those propositions are confronted with arguments that demonstrate judicial legitimacy on abstract decisions. The hypothesis affirms that, inside functional constitutional systems, nor the Parliament nor the Judiciary have the final say in abstract regulation. In order to demonstrate the validity of the assertion, two different cases are scrutinized: i) same-sex marriage in Brazil; ii) Brazil’s “vaquejada”, a sport considered unconstitutional by the Federal Supreme Court, but subsequently accepted by Constitutional Amendment n. 96/2017. |
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