On the Limits of Constitutional Adjudication Deconstructing Balancin
Juliano Z. Benvindo investigates the current movement of constitutional courts towards political activism, especially by focusing on the increasing use of the balancing method as a “rational” justification for this process. From the critical perception of
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Juliano Zaiden Benvindo
On the Limits of Constitutional Adjudication Deconstructing Balancing and Judicial Activism
Professor Juliano Zaiden Benvindo Faculty of Law University of Brası´lia Campus Darcy Ribeiro Asa Norte Faculdade de Direito Brası´lia - DF Brazil 70.919-970 [email protected]
ISBN 978-3-642-11433-5 e-ISBN 978-3-642-11434-2 DOI 10.1007/978-3-642-11434-2 Springer Heidelberg Dordrecht London New York Library of Congress Control Number: 2010931461 # Springer-Verlag Berlin Heidelberg 2010 This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Violations are liable to prosecution under the German Copyright Law. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Cover design: WMXDesign GmbH, Heidelberg, Germany Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)
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Acknowledgements
This book is the result of the doctoral research originally entitled Towards a Conception of Limited Rationality in Constitutional Adjudication: a Critical Response to Balancing in German and Brazilian Constitutional Cultures, which was carried out at the Humboldt University of Berlin (Humboldt-Universita¨t zu Berlin), Germany, and University of Brası´lia (Universidade de Brası´lia), Brazil. I am especially grateful to Professor Dr. Bernhard Schlink, of the Humboldt University of Berlin, for supervising this research. Certainly, his precious remarks on its contents and systematization and the way he encouraged me to explore the relevant development of German constitutional culture were essential to this result. His concern for the need to develop the effective critique of the way constitutional courts make decisions was an inspiring message that accompanied me throughout the investigation. I would also like to express my gratitude to Professor Dr. Miroslav Milovic, of the University of Brasilia, who also supervised this work, for his relevant suggestions, especially the dialogue between Ju¨rgen Habermas’s intersubjectivity and Jacques Derrida’s diffe´rance. This research would not have been possible without the support of Professor Dr. Menelick de Carvalho Netto, of the University of Brası´lia, especially because of his suggestion to investigate this connection between Brazil and Germany in decisionmaking, and the problems arising from the belief in the rationality of balancing. My special gratitude
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