The judicial review as an assecuratory mechanism of fundamental rights in the light of Habermas discursive legal theory
DOI:
https://doi.org/10.29293/rdfg.v6i01.248Keywords:
Democratic legitimacy. Judicial Review. Habermas's Discursive Theory of Right and Democracy.Abstract
This article seeks to examine the conception of fundamental rights according to the Communitarian Theory and the existing risks due to its use, above all, by the lack of democratic legitimacy. Then, in the light of Habermas' Discourse Theory, it will be demonstrated how fundamental rights must be faced in order to achieve greater democratic legitimacy. After establishing these bases, the control of constitutionality will be overspread with the purpose of demonstrating its inherent character for the rights of citizens. It is also based on the study of the vote of Minister Luís Roberto Barroso in Constitutional Declaratory Actions 43 and 44, to demonstrate how the use of communitarian foundations in judicial decisions can lead to violation of fundamental rights, which is why its adoption should be abandoned. The bibliographical research will be the main way to elaborate the present academic work, besides the case study mentioned.
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Copyright (c) 2019 Jeferson de Oliveira Mendes, Rebeca Souza Henriques, Flávio Quinaud Pedron
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