The increase of human rights judicialization in Brazil at the end of the 20th century has led to an ever more intense intervention of the Judiciary in public policy choices, effectively shifting the decision-making process from the Executive to the Courts, in turn hindering proper policy-making, as more often than not judicial decisions do not converse with administrative choices. With this in mind, we propose a deference-based model that does not impede the analysis of administrative decision’s merit, while also stimulating better institutional practices, both in the Executive and Judiciary branches. We also suggest that, in the specific subject of public policies, public participation must be included among the criteria for judicial deference, so as to ensure public interest is respected.
This paper addresses Waldron’s treatment of the pre-commitment analogy (PA) in Law and Disagreement. First, I shall argue, against Waldron, that the PA captures a crucial feature of constitutional activity, which is its institutional lucidness. Constitutional processes can be described as institutionally lucid in three dimensions: sociological, legal and historical. The basic claim is that this lucidness justifies the deference our legal system owes to the constitution and that judicial review of legislation instantiates that deference.
An additional reference to Waldron helps to precise the scope of the argument. Waldron correctly criticizes the PA grounded in the “abstraction” and “ambiguity” of constitutional rights. However, on this point, he misses the enemy. The problem he identifies is not of the entrenchment, but of a technique to formulate rights. A technique that is defective precisely because it does not entrench anything properly speaking.
Despite the broad range of rights protected in Brazilian Constitution, allied with the important role that the Judicial Power has performed in their protection and promotion, Brazil is actually facing a scenario of growing conservatism in the democratic institutions. Hate speech increased and fake news spread, which combined configure real menaces to the rights related to equality and liberty, especially of those who are already marginalized and least represented in the Executive and Legislative branches, and even a threat to democracy itself. Because of that, the discussion about the bounders of the Judiciary performance is coming up over again, which leads us to question: Should the Judiciary take the lead in the protection of this rights that are being constantly questioned and attacked by conservative groups in power in order to avoid setbacks and the future collapse of our democracy?
The Brazilian 1988 Constitution is grounded in social rights provided with immediate efficacy, bringing intense judicialization and deep judicial intrusion on administrative choices.
The research question is whether judicial deference to administrative choices in public policies can contribute to grant equality in the effectiveness of social rights.
The argument pro deference relies in two considerations: 1) judicial review requires objective criteria in order to prevent subjective appreciation to the ruling, and the risk of inequality and subversion of distributive concerns inherent to public policies; and 2) deferential judicial review benefits from the institutional capacity that is recognized to the Executive branch.
The Brazilian scenery brought the false impression that, as means to enhance human dignity, those rights can be properly grant by judges. That misconception contributes to devaluate the political process in which social rights are design in its content and addressees.
Deference is a pervasive concept in American law, yet remains surprisingly under-analyzed. While Chevron v. NRDC, Inc. (1984) which prescribes judicial deference to agency interpretations of statutes has become the most cited Supreme Court case of all time, neither the Court – nor Black’s law dictionary – have ever defined deference in full. In an effort to begin fill the gap in the conceptual and comparative literature on deference Prof. Gary Lawson of Boston University and I have recently completed writing a book on this topic for Oxford University Press. My proposal is double: first, to preset the main points of our analysis at the icon-s conference; the second, since we realize that deference exists and operates in many legal systems, we wish to call on colleagues from other countries to cooperate with us on a proposed second volume – Deference in Comparative Law Perspective.