Judicialização da Política | Luciana Gross Cunha - USP Talks #13

Summary

The video explores the evolving role of the judiciary in democratic societies, focusing on Brazil's 1988 Constitution. It highlights how the judiciary, originally tasked with resolving individual conflicts, now plays a central role in interpreting and shaping laws on broader societal issues. The judicialization of politics, particularly in areas like health rights, has led courts to act as both interpreters and creators of law. This shift has significant implications for the balance of power between the judiciary, legislature, and society, raising important questions about democracy and the role of courts in modern governance.

Takeaways

• 😀 The role of the judiciary in modern democracies is complex and evolving, especially in relation to mass societies and globalization.
• 😀 Initially, the judiciary's role was to resolve individual conflicts between persons, based on clear, universal laws.
• 😀 Judicial decisions in individual conflicts used to have limited scope, only impacting the involved parties, with the judiciary acting as an arbitrator to restore peace.
• 😀 Today, the judiciary is increasingly involved in mediating conflicts that are not just individual, but have collective implications, often impacting entire groups or society at large.
• 😀 Judicialization of politics refers to the expansion of the judiciary's role beyond merely applying laws to creating and interpreting laws, particularly through constitutional interpretation.
• 😀 An example of judicial involvement is the right to health, which can have varying interpretations, requiring the judiciary to mediate and decide its meaning and application.
• 😀 The judiciary's role has expanded to include not just applying pre-existing laws but also creating new norms, especially in cases involving collective rights like healthcare or social issues.
• 😀 The 1988 Brazilian Constitution facilitated the judicialization of politics by including promises of greater equality and individual rights, which require judicial mediation to be fully realized.
• 😀 Judicial decisions are no longer limited to bilateral disputes but can have wide-ranging impacts, as decisions may affect large segments of society, breaking the traditional limits of adjudication.
• 😀 The judiciary's evolving role, especially in a society driven by mass media and spectacle, has resulted in a larger influence over political and social matters, raising debates about its impact on democracy.
• 😀 The judicialization of politics is not a result of the personal will of judges but is a consequence of constitutional choices made by Brazilian society during the 1980s and culminated in the 1988 Constitution.

Q & A

What is the primary role of the judiciary in a democracy?

The primary role of the judiciary in a democracy is to apply the law, ensuring that legal disputes are resolved according to the established rules and principles. However, in modern societies, the judiciary's role has evolved to include the interpretation and, at times, the creation of new legal norms.

How was the judiciary historically designed to function?

Historically, the judiciary was conceived to resolve individual conflicts between persons, applying pre-existing, clear, and universal laws. Its goal was to restore peace or return to the status quo before the dispute arose, with decisions being applicable only to the individuals involved.

What does the judicialization of politics mean?

Judicialization of politics refers to the increasing involvement of the judiciary in political and social matters, where judicial decisions often go beyond applying existing laws and start shaping new legal interpretations and public policies.

How has the role of the judiciary changed in modern democratic societies?

In modern democratic societies, the judiciary's role has expanded from merely applying laws to interpreting and sometimes creating new rules. This shift is largely driven by societal complexities, where conflicts are no longer limited to individual disputes but involve larger societal issues, like healthcare or social rights.

What does the Brazilian Constitution of 1988 have to do with judicialization?

The Brazilian Constitution of 1988 plays a key role in the judicialization process by making broad promises about creating a more equal and participatory democracy. These promises often require judicial interpretation and intervention, as the rights guaranteed by the Constitution are not always clear or immediately applicable, prompting the judiciary to mediate and define their meaning.

How does the judiciary's involvement in issues like healthcare represent judicialization?

The judiciary's involvement in healthcare cases exemplifies judicialization because courts are often called upon to decide on the right to access healthcare or medicines, which can affect large groups of people. These decisions go beyond individual disputes and have widespread societal implications.

What is the relationship between the judiciary and the legislative in the context of judicialization?

The growing role of the judiciary in interpreting and creating legal norms has blurred the traditional roles of the legislative and judicial branches. While the legislature is typically responsible for creating laws, the judiciary is increasingly making decisions that shape the interpretation and application of those laws, which can influence public policy.

What does the concept of 'justice comutativa' or 'zero-sum justice' refer to?

Justice comutativa, or zero-sum justice, refers to legal situations where there is a clear winner and a loser in a dispute. In traditional judicial cases, one party's gain is another's loss, and the role of the judiciary is to restore a previous state of affairs, such as resolving a property dispute between two individuals.

How does judicialization break the traditional concept of bilateral legal disputes?

Judicialization breaks the bilateral nature of legal disputes because many modern conflicts involve broader societal issues. For example, decisions made in individual legal cases—such as one person demanding access to a public service—can affect entire communities, not just the parties involved in the case.

What challenges arise when the judiciary creates new legal norms?

When the judiciary creates new legal norms, it raises concerns about the separation of powers, as the judiciary steps into a role traditionally reserved for the legislature. This can lead to tensions between the branches of government, as judicial decisions may shape public policy without a direct democratic mandate from the electorate.