The concept of juristocracy, a term coined by Ran Hirschl in his 2004 book “Towards Juristocracy: The Origins and Consequences of the New Constitutionalism,” refers to the phenomenon where constitutional reforms transfer unprecedented power from representative institutions to the courts. This concept is particularly relevant in the Brazilian context, where the 1988 Constitution established a robust system of judicial review.
Hirschl’s theory is based on empirical research and identifies four key traits that accompany the transfer of power to the courts: the adoption of a constitutional catalog of rights combined with active judicial review, the conversion of an adversarial discourse on rights into the dominant form of political debate, the attribution of a quasi-sacred status to the belief that judicially affirmed rights can transform society outside of politics, and the conversion of higher courts into central organs of political decision-making.
Origins of Power and the Thesis of Hegemonic Preservation
The issue of why political power has been transferred to the courts is significant, and Hirschl’s response is the thesis of hegemonic preservation. According to this thesis, when a dominant group anticipates losing control over the majority arenas, it entrenches its preferences in the constitutional text and transfers the final word to a socially homogeneous and predictable court. This phenomenon is evident in several constitutional revolutions examined by Hirschl, including Israel’s 1992 revolution.
Robert Dahl’s argument, cited by Hirschl, reinforces this point, suggesting that it is unrealistic to assume that a court composed of members recruited like those of the US Supreme Court would sustain, over time, norms substantially divergent from the preferences of the political elite that comprises it. The court is not an external actor but an integral part of the system.
In the Brazilian context, the Constitution of 1988 established a system where the Judiciary is the only power that does not receive votes. The art. 84, XIV, of the CF/88 attributes to the President of the Republic the appointment of ministers, and the art. 101, parágrafo único, requires prior approval of the choice by the absolute majority of the Senate Federal.
A series of decisions by the Supreme Court (STF) illustrates the limits of its power. The Constitution of 1988 reserves the exercise of the Legislative Power to the Congress National, and the Judiciary is only allowed to initiate legislation related to its own statute.
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The problem lies not in the constitutional text but in its non-observance by those who have the duty to enforce it. The Senate’s failure to exercise its prerogatives has led to a situation where the Judiciary operates without effective control.
The consequences of this phenomenon are far-reaching. As Hirschl’s definition describes the Brazilian situation with increasing precision, it becomes clear that the transfer of power to the Judiciary was not imposed by an external agent nor operated by a constitutional amendment but was consented to by the Senate, the electorate, and the judicial community itself. The Constitution of 1988 remains intact, awaiting application, as no constitution applies itself.
The Brazilian case presents a unique scenario, where the transfer of power to the Judiciary was consented to by the relevant actors.
Constitutional Limits and the Judiciary’s Role
The Brazilian electorate’s absenteeism has been a significant factor in this situation. The constitutional design is interconnected, and the breaking of one link leads to the subsequent links giving way, allowing juristocracy to become established without the need for a formal rupture.
Constitutional Limits and Judicial Overreach
The Constitution establishes clear limits on the Judiciary’s power. The Senate has the exclusive power to approve ministers. The Judiciary’s legitimacy is derived from the democratic process, as its members are appointed and approved by elected officials.
