The use of the European Court of Human Rights and the Inter-American Court of Human Rights precedents by the Brazilian Federal Supreme Court: a preliminary data research

This preliminary data research aims to provide a study of the existence, the role and the impact of the cross judicial fertilization between the Brazilian Federal Supreme Court and the Inter-American Court of Human Rights and of the European Court of Human Rights. The objective is to understand the judicial interaction among the Courts and the hole played by the use of the precedents. The comparative law has an impact on the conviction of the members of the Court. It is necessary to create an interpretative common culture among the Latin-American countries in order to provide a real integration based on an effective judicial dialogue. The Latin-American ius commune depends on dynamic jurisdictional dialogue to look to each other’s jurisprudence. In conclusion, it was shown that the Brazilian Federal Supreme Court has been opened to the reception of foreign precedents to protect the fundamental rights and strengthen democracy. These constitutional provisions right effectively meet the role of exchanging solutions in order to create a network of persuasive authority.

Dialogue or Symbiosis? An evolutionary approach to interbranch dynamics

Dialogue is an influential metaphor in constitutional theory. In this paper, we reassess the different ways in which scholarship has been advancing the dialogic approach either to describe the interactions between judicial institutions and other actors or to develop normative theories on the proper role of courts in deciding in a cooperative manner. We argue that, even though the dialogue model has important insights, some of the premises it draws from deliberative democratic theory makes the use of the metaphor rather inadequate to describe judicial institutions and their political landscape. We propose an alternative approach from an evolutionary paradigm, based on the metaphor of symbiosis, to address the institutional development of courts as a relational process of association with other political actors. In order to contrast our approach with the dialogue model, we use the example of the relationship between Brazilian political parties and the Federal Supreme Court.

Patterns of judicial dialogue between national courts and the Inter-American Court of Human Rights

Comparative study of how the Supreme Courts of Argentina, Brazil, Mexico and the Constitutional Court of Colombia have reacted to the “control of conventionality” doctrine of the Inter-American Court of Human Rights. The analysis uses the following variables: the meaning of constitutional provisions about the reception of international norms by domestic law; the status of international treaties of human rights in domestic law; the direct effect of international provisions; and the use of consistent interpretation by courts. The study discovered the following patterns of judicial dialogue between these courts: constitutional clauses opening to international law leads to a change of judicial posture from resistance to engagement or convergence; the constitutional status of international treaties of human rights reinforce their normativity in domestic law and its direct effect; the use of consistent interpretation favors a posture of engagement of the national courts regarding the IACtHR.

About constitutionalism and parliamentarism: when Constitutional Courts need the legislator

The paper aims at investigating which effects derive on the role of Constitutional Courts from the increasing difficulty shown by the legislator, in contemporary pluralistic societies, in balancing and implementing constitutional rights. Originally seen as anti-majoritarian bodies, Constitutional Courts were often conceived as negative legislators and forms of judicial scrutiny on the activity of the legislator. This explains why, once the legislator loses its capacity to set some kind of regulation of constitutional rights, it becomes more difficult for Constitutional Courts to play the role they have been conceived for. This brings Constitutional Courts to try to establish forms of direct dialogue with the legislator and in some cases even to protect the role of the Parliament. The paper will consider examples taken from the recent activity of the Italian Constitutional Court and will reason on the respective evolution, in continental Europe, of constitutionalism and parliamentarism.

Concrete review in Portugal as a case of weak-form judicial review

I focus on the Portuguese system of concrete review as a case of weak-form review. The dichotomy between weak-form and strong-form judicial review reports on the availability of doctrinal or formal mechanisms that either allow courts to defer the last word on constitutional interpretation to the legislature or empower the political branches to claim such power. Against this backdrop, I propose a new reading of the Portuguese system of concrete review. When the constitutional controversy arises in concrete disputes, the Portuguese system enshrines a diffuse model whereby every court can disapply unconstitutional laws, subject to appeal to the Constitutional Court. The rulings delivered by the Court only produce inter partes effects, unlike those produced under abstract reviews. Although this creates a complex system, it also provides for an intricate mechanism which allows dialogic exchanges between the judiciary and the legislature on complex matters of constitutional interpretation.