The Perils of Judicial Avoidance: on deciding not to decide and the Rule of Law

In today’s democracies, the importance and influence of constitutional decisions are indisputable. What sometimes comes across less visible is how influential courts also are when they avoid a decision. Judicial avoidance is a common practice all around the world. Jurisdictions use different techniques, at different moments, with a common aim: delaying a decision on the substance. This paper wants to explore the importance of providing a normative framework for judicial avoidance. It defends that the legitimacy of the courts will only be strengthened once these avoidance practices are also exercised in compatibility with the Rule of Law. For that, it will start by identifying the avoidance techniques used in different jurisdictions, but focusing mainly on the Brazilian Supreme Court. Then, the downsides of a pragmatic approach will be analyzed. In conclusion, the advantages of a normative approach will be fostered.