ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

44 CONSTITUTIONAL JURISDICTION,
DIALOGUES AND HUMAN RIGHTS
The panel focuses on the role played nowadays by constitutional
jurisdiction in theoretical and comparative
terms. It discusses a more dialogical model for judicial
review – internally and externally considered- especially
in face of human rights demands. A more or less strong
judicial review, new designs for constitutional courts,
democratic legitimation and dialogues among national
and international courts are some of the themes of the
panel. The comparative perspective is also considered
from the approximation of civil law to common law by
means of the appropriation of some substantial and
procedural features from one system to another and
vice-versa. Supreme Courts have ensured rights such
as abortion and same-sex marriage, which have provoked
strong conservative reaction. The panel brings
also a comparative analysis of two Supreme Court
decisions concerning private autonomy and religious.
Participants Vera Karam de Chueiri
Estefânia M. de Queiroz Barboza
Melina Girardi Fachin
Katya Kozicki
Gabriele Polewka
Name of Chair Vera Karam de Chueiri and
Katya Kozicki
Room UL6 2103
Vera Karam de Chueiri: Constitutional jurisdiction
in times of radicalization (of democracy)
To what extent the idea of a radical constitution affects
constitutional jurisdiction calling for new arrangements
based on a kind of experimentalism towards
institutions? Can one think of a design for constitutional
courts from a perspective other than the one given by
the so-called positive social sciences? Based on the
idea of a radical constitution this paper sketches some
normative possibilities for constitutional courts taking
progressive constitutionalism and the politics of radical
democracy as its starting point. Progressive constitutionalism
and radical political theory are different
but share a critical attitude towards liberal democracy
and a commitment to certain elements of the liberal
tradition. Radical democracy favors participation and
enhanced opportunities for popular power. Progressive
constitutionalism highlights the benefit of reason over
power by means of dialogue and deliberation, according
to normatively grounded procedures and principles.
Estefânia Maria de Queiroz Barboza: Common
Law and Civil Law dialogues in human rights: the
Brazilian experience
From the second half of the 20 th century on, because
of the human rights revolution, the Judiciary has
played a new interpretative role. This fact has brought
many difficulties for the civil law tradition and the dominant
positivist doctrine, as one could not decide any
more cases of human rights solely based on the text
of the law. This also raised the problem of legal uncertainty
considering that there were no pre-established
limits to the interpretative activity of judges. Given this
context of legal uncertainty, this paper advocates for
the use of the doctrine of stare decisis, which in turn,
is consistent with Dworkin’s law as integrity, for granting
legal certainty, predictability and stability to legal
systems such as the Brazilian one. So, it proposes a
dialogue between the civil and common law systems
in the realm of constitutional jurisdiction adopting the
doctrine of stare decisis and the notion of integrity in
order to ensure consistency, stability and predictability.
Melina Girardi Fachin: The Enforcement of
Social and Economic Rights through jurisdictions’
legitimation and justification
The present paper aims to defend the democratic
legitimacy of the Judiciary in the implementation of
social and economic rights. Nowadays, there is a
plausible strong aversion to judicial protagonism, in
both national and international scenarios, moreover
in issues that are at the borders of law and politics.
However, this distaste position cannot serve as an excuse
to the absence of the implementation of human
rights, especially economic and social ones. A more
active role for the Judiciary arises out of the reduced
effectiveness that social, economic and cultural rights
have when compared to civil and political ones. In this
sense, the enforcement of such rights through internal
and external jurisdiction does not constitute a violation
of the democratic model and its legitimation, on the
contrary: it ensures Courts action since the only real
democracy arises from the effective guarantee of all
rights and their implementation.
Katya Kozicki and Gabriele Polewka: Religious
Freedom X Private Autonomy: (Judicial) Protection
Of Rights In Constitutional Democracies
The paradox of constitutional democracy found
no solution so far, especially concerning basic rights
issues. One argues that these issues are of a juridical
kind and should be decided by the Courts or that they
are of a political kind and should be faced by the legislative
or by the people themselves. A third argument
denies judicial review as a logical consequence of constitutionalism
yet recognize some situations where it is
necessary to guarantee democracy itself such as the
case of protecting private autonomy. Supreme Courts
have been acting to ensure rights such as abortion and
same-sex marriage. There has been, however, strong
conservative reaction against these decisions. Freedom
of religion’s legislative protection has increased
as well as the so-called complicity-based conscience
claims. The paper put into question the special protection
granted to religious freedom and advocates that
the accommodation of this broader kind of conscience
claims inflicts harms to those affected.
Concurring panels 79