Constitutional institutional choices are predetermined by abstract principles such as separation of powers and constitutional rights. Each of these principles entails a minimally determined content that in hard, borderline cases, may prove less than useful.
The normative content of the constitutional framework for institutional choices cannot be detached from the concrete conflictual setting and is inherently precarious and subject to contestation.
It follows from the above that the institutionalization of judicial review is an open framework subject to temporal modifications and demands from the political, constitutional, and societal realms. Hence, its legitimacy is not an abstract challenge and relies heavily on how the relevant institutions manage concrete conflicts. Against this background, this presentation provides an analytical framework to inquire upon the relationship between the courts and the legislator in highly politicized conflicts.
Vulnerable individuals and groups, from asylum seekers and members of cultural and social minorities to minors, persons with disabilities, the elderly and women, have common and also specific needs and demands of recognition and protection.
A complex understanding of equality, encompassing both equal and differentiated protection norms, policies and practices, and considering both individuals and groups, is required.
The paper aims to discuss the concept of vulnerability, vulnerable persons and vulnerable groups, as well as critically assess the attitude of the State, committed to fundamental rights and dignity, towards vulnerability. Once again, the conciliation between the universal and the particular, crucial in diverse societies looking for common grounds, reemerges.
Virtually all areas of everyday life are influenced by the digital revolution and one of the most affected is the public sphere. With the emergence of the internet, and especially with the platformization of internet services of the last decade, the public sphere, previously organized around radio broadcast, television and printed press, is now facing the competition of social networks. Social media platforms have revolutionised our ability to connect across historic social, political and geographic divides. However, this also means that increasingly these platforms are operating as “gatekeepers”, deciding which kind of speech is allowed or censored. An immense regulatory challenge arises because social networks have a specific legal status: private but opened to the public. Social media platforms have been exempt, so far, from traditional duties of due process and respect of human rights, representing an unprecedented challenge to the protection of freedom of expression.
The counter-majoritarian appeal of rights is not new; the growing importance of rights in the constitutional scenario is not to be separated from relevant shifts and new balances between State branches, especially leading to stronger Courts.
A sensitive example makes this circumstance tangible; escalating judicial demands for medicine delivery grounded on the broad right to health challenges the relation between Courts and the Administration, menaces public budget decisions, and general policy enforcement.
The paper proposes to look to this wide question departing from an analysis of the recent decisions taken by the Brazilian Supreme Court regarding State duty to deliver costly medicines. Midst of a sea of generous judicial decisions in favor of individual demands, the Court started pointing the path of deference towards political decisions taken either by the Legislative and by Administration.
The communication discusses the nowadays importance of citizenship as a way of building or reinforcing a sense of belonging in a democratic and pluralist society and as a way of revisiting the “social contract” doctrines.
The solution is to turn constitutional legitimacy into a double pattern, both constitutive and declarative and as a project that accounts the foundational act as a continuous process throughout generations. The focus on today's citizenship, more than mere acceptance or rejection of personal links, is intended to reinforce fidelity to values of fundamental order. This is particularly important, at a time when the perception of the legitimacy of political representation is questioned. And we will argue that those values are perhaps nowadays different form the one enshrined in the three parted motto of the French Liberal Revolution.