Minimalismo judicial : alternativa democrática de atuação do poder judiciário em uma sociedade pluralista a partir da perspectiva de Cass R. Sunstein

AUTOR(ES)
DATA DE PUBLICAÇÃO

2009

RESUMO

The constitution promotes a democratic form of government, demanding that the problems of a society be solved through democratically legitimate decisions. At the same time, the constitution withdraws certain rights from the political agenda, protecting them from the power of the legislator. However, the constitutional clauses that establish the fundamental rights of the people are of open texture, a fact that is especially aggravated in the face of pluralism. The judicial conflicts that emerge in these contexts, thus, are complex and intricate, because when courts try to solve such questions they might compromise the democratic political processes. That is why it is important to find the limits of action of the judiciary in the domain of a deliberative democracy and a pluralistic society, since it is not acceptable that courts decide legitimately about its highest principles. From such a perspective, the minimalist approach of Cass R. Sunstein seems to be an appropriate alternative for societies which are engaged in promoting deliberation among free and equal citizens. It refers to a less invasive judicial behavior, designed to produce non-definitive, narrow and superficial decisions, leaving the most important questions open.

ASSUNTO(S)

pluralismo sunstein, cass r. poder judiciario democracia direito direito

ACESSO AO ARTIGO

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