Title On the limits of legal rationality : balancing and judicial activism in deconstruction / by Juliano Zaiden Benvindo

Published Berlin ; London : Springer, 2010

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Description 1 online resource Contents Note continued: 5.2.1. Jacques Derrida and Differance -- 5.2.2. Differance and Constitutional Democracy: The Democracy to Come -- 5.2.3. to Come in the Negotiation Between Constitutionalism and Democracy -- 5.2.4. Differance Within the Context of Decision-Making: The Negotiation Between Law and Justice and the First Insight into Legitimacy -- 5.3. Balancing Within the Context of Differance -- 5.3.1. Introduction -- 5.3.2. Balancing and the Logos of Correctness-Rationality -- 5.3.3. Balancing and the Logos of Legitimacy -- 5.4. Final Words -- 6. When Procedures Towards Mutual Understanding Come to Light: Balancing Within the Context of Proceduralism -- 6.1. Introduction -- 6.2. Claim to Coherence in Robert Alexy's View: When Rights Lapse into General Practical Discourse -- 6.3. Post-Metaphysical Response to Balancing as an Indispensable Instrument for Coherence: The Coherence and the Single Right Answer Within Democratic Procedures of Opinion -- and Will Formation -- 6.3.1. Introduction -- 6.3.2. Klaus Gunther's View: Coherence Through the Distinction Between Discourses of Justification and Discourses of Application -- 6.3.3. Ronald Dworkin's View: Integrity in Legal Reasoning and the Claim to the Single Right Answer as a Response to Coherence -- 6.3.4. Jurgen Habermas's View: Between Facts and Norms Within Democratic Procedures of Opinion -- and Will Formation -- 6.4. Metaphysics of Balancing from the Perspective of the Proceduralist Account -- 6.4.1. Introduction -- 6.4.2. First Outcome: The Construction of an Axiological Content in the Structure of Principles -- 6.4.3. Second and Third Outcomes: The Confusion between Discourses of Justification and Discourses of Application and the Loss of Protection of Minorities -- 6.4.4. Fourth Outcome: The Relativization and Misunderstanding of the "Single Right Answer" -- 6.4.5. Final Analysis: The Problem of Rationality in Alexy's Thinking Note continued: 6.5. Final Words -- pt. III Concept of Limited Rationality -- 7. Between Differance and Intersubjectivity: The Concept of Limited Rationality in Constitutional Democracy -- 7.1. Introduction -- 7.2. When Proceduralism and Deconstruction Are Placed Side by Side: The First Insight into the Limits of Reason -- 7.3. Quest for Justice: A Dialogue Between Symmetry and Asymmetry? -- 7.3.1. Introduction -- 7.3.2. Is Really the Quest for Consensus Incompatible with Asymmetry? A Look Into Chantal Mouffe's "Agonist Model of Democracy" -- 7.3.3. Internal Dialects Between Modern Equality and Individuality: The Symmetry and Asymmetry in Christoph Menke's Account -- 7.3.4. Resolution as a Non-Resolution: The "Irresolvable But Productive Tension" Between Differance and Intersubjectivity in the Quest for Justice -- 7.4. Final Words -- 8. Between Differance and Intersubjectivity: The Concept of Limited Rationality in the Realm of Constitutional Adjudication -- 8.1. Introduction -- 8.2. Concept of Limited Rationality in the Realm of Legal Adjudication: Intersubjectivity and Differance in a Complementary Fashion -- 8.3. Concept of Limited Rationality In German and Brazilian Constitutional Realities -- 8.4. When the Concept of Limited Rationality Meets Constitutional Cases -- 8.4.1. Introduction -- 8.4.2. Crucifix Case -- 8.4.3. Cannabis Case -- 8.4.4. Ellwanger Case -- 8.5. Final Words Summary Juliano Z. Benvindo investigates the current movement of constitutional courts towards political activism, especially by focusing on the increasing use of the balancing method as a "rational" justification for this process. From the critical perception of the serious risks of this movement to democracy, the book takes as examples two constitutional realities, Germany and Brazil, in order to discuss the rationality, correctness, and legitimacy of constitutional decisions within this context Through a dialogue between Jacques Derrida's deconstruction and Jurgen Habermas's proceduralism, the author confronts Robert Alexy's defense of the balancing method as well as those two constitutional realities. This confrontation leads to the introduction of the concept of limited rationality applied to constitutional democracy and constitutional adjudication, which affirms the double bind of history and justice as a condition for a practice of decision-making committed to the principle of separation of powers. --Book Jacket Analysis recht law grondwet constitution and law filosofie philosophy Law (General) Recht (algemeen) Notes Print version record Subject Political questions and judicial power. Judicial process. Justice, Administration of. Political questions and judicial power -- Germany Political questions and judicial power -- Brazil Judicial process -- Germany Judicial process -- Brazil Justice, Administration of -- Germany Justice, Administration of -- Brazil LAW -- Judicial Power. Judicial process Justice, Administration of Political questions and judicial power Brazil Germany Form Electronic book ISBN 9783642114342 3642114342

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