JURISTOCRACY IN BRAZIL AND THE FUTURE OF THE CONSTITUTION

• Main Author: Claudia Maria Barbosa
• Format: Article
• Language: Portuguese
• Published: Universidade Federal de Santa Maria 2019-08-01
• Series: Revista Eletrônica do Curso de Direito da UFSM
• Subjects: brasil; constituição; estado democrático de direito; juristocracia.
• Online Access: https://periodicos.ufsm.br/revistadireito/article/view/34100

We commonly associate in a virtuous way the expansion of the judiciary, the constitutionalisation of rights and the effectiveness of the democratic rule of law, a premise  that is contested in this article. The qualitative  bibliographic study carried out analyzes the characteristics and trajectory of liberal constitutionalism, some features of contemporary constitutional theories that explain the expansion of the role of the interpreter and judicial discretion, and the construction of Ran Hirschl on juristocracy, in order to sustain an opposite hypothesis: that the type of political regime of the juristocracy that has been strengthened in western democracies is incompatible with the liberal constitutionalism and weakens their constitutions, making them dysfunctional and incapable of ensuring the balance of powers, the defense of rights and to contain the abuse of state power. The paper starts with a theoretical deductive approach used to analyze some scenarios of juristocracy, then followed by the the exam of some specificities of the emergence of juristocracy in Brazil. The conclusion is that juristocracy makes constitutions dysfunctional and represents a risk for the democratic rule of law in the word and also in Brazil.