On the limits of constitutional adjudication: deconstructing balancing and judicial activism

Juliano Z. Benvindo investigates the current movement of constitutional courts towards political activism and the consequent deployment of balancing as a “rational” method that could justify this process. From the critical perceptionof the serious risks of this movement to the separation of powers, the book takes as examples two constitutional realities, Germany and Brazil, in order todiscuss the rationality, correctness and legitimacy of constitutional decisions within this context. Through a dialogue between Jacques Derrida’s deconstructionism and Jürgen Habermas’s proceduralism, the author confronts Robert Alexy’s defense of balancing and those 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. Empirical and historical analysis of the increasing development of activist constitutional courts in political matters Debate on the rationality of balancing Introduction of a concept of limited rationality in a constitutional adjudication INDICE: German and Brazilian Constitutional Cultures: Constitutional Adjudication and Activism: An Approach to Decision-making.- Balancing Within the Context of German Constitutionalism: The Bundesverfassungsgericht's Shift to Activism.- Balancing Within the Context of Brazilian Constitutionalism: The Supremo Tribunal Federal's Shift to Activism.- The Debate on the Rationality of Balancing: The Aim to Rationalize Balancing Within the Context of the Constitutional Court's Activism.- When Différance Comes to Light: Balancing Within the Context of Deconstruction.- When Procedures Towards Mutual Understanding Come toLight: Balancing Within the Context of Proceduralism.- The Concept of LimitedRationality: Between Différance and Intersubjectivity: The Concept of LimitedRationality in Constitutional Democracy.- Between Différance and Intersubjectivity: The Concept of Limited Rationality in the Realm of Constitutional Adjudication.

• ISBN: 978-3-642-11433-5
• Editorial: Springer
• Encuadernacion: Cartoné
• Páginas: 500
• Fecha Publicación: 01/08/2010
• Nº Volúmenes: 1
• Idioma: Inglés