Premissa majoritária e legitimidade de atuação da jurisdição constitucional

Abstract

In this paper the premises and limits of constitutional jurisdiction in the scope of contemporary democratic regimes are examined. The analysis of the theoretical contribution on the subject grows in importance before the quantity of countries which adopt some sort of constitutional jurisdiction, making it an instrument in safeguarding the Constitution and a requisite of legitimacy for the democratic constitutional regimes. The problem of the limits between constitutional jurisdiction and popular sovereignty, notably when it comes to the justification of the power of the courts, composed of nonelected agents in a democratic institutional frame, demands focus. Given this, in this research some of the most debated tendencies of the constitutional theory and political philosophy are analyzed, destined to justify and limit the proceedings of constitutional jurisdiction. Considering the existence of several premises which are necessary to the exercise of democracy, their relationship with the majoritarian premise must be questioned. The majoritarian rule is not a dogma which directs democracy, bur rather a decision criterion, an adequate technique to the functioning of the democratic regime. In this sense, it is demonstrated that democracy is not reduced to an arithmetical notion of a “government of the biggest quantity”, because it assumes that the collective decisions dedicate to all members of the community equal care and respect. It is found that, in parallel with the principle of popular sovereignty is the necessary safeguarding of the fundamental rights, in a way as to permit the real possibility, for all citizens, of influencing in the formation of collective decisions. From this intricate relation between democracy and fundamental rights, a new role to the Constitution emerges, and, consequently, to constitutional jurisdiction, notably in the plural societies of the present times, in which the consideration of the many values, interests, beliefs and ethnicities in the same sociopolitical space imposes the harmonization of the will of the majority with a democratic guideline which is sensitive to differences. Thereby, the constitutional consecration of fundamental rights and its necessary protection by the constitutional jurisdiction point towards the confirmation of a juridical and political system which promotes the universalization of citizenship, securing for all the same opportunities of exercising their rights, so as to fulfill the necessary premises to a democratic constitutional regime.