BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

Moreover, we can clearly identify the activism of the court in this case. In one of the votes, a judge noted that the recognition of homosexual unions for the purpose of State protection can help to reduce discrimination and even curb violent practices stemming from homophobia. Certainly, reducing discrimination is a beneficial objective, and any violent activities towards homosexuals should be repudiated. As Norbert Elias says, one must believe in the civilizing process. However, one wonders whether this type of opinion, which is pointedly political and lacking an empirical basis, could serve as the foundation for a judicial decision. Regardless, both the origin and the outcome of this case represent how the Brazilian legal field discusses the interpretative activism of the Federal Supreme Court. 3. The reaction of the establishment to judicial activism, panprincipalism and jurisprudential fragmentation In countries such as Brazil, the so-called era of principles, which has given rise to constitutional texts with social-policy characteristics, developed while heavily dependent on traditional methods and their variations, which had been derived by theorists ranging from formalists to supporters of alternative approaches to rights (i.e., realists, Critical Legal Studies). On the one hand, doctrine and jurisprudence were still linked to traditional juridical dogma and continued to sustain normative practices, though these practitioners struggled greatly to understand the advent of a new theory of sources . On the other hand, sectors still engaged in implementing the Constitution began to bet on the judiciary as a driver of this process but did so without performing a corresponding reflection on the conditions of possibility for this protagonism. That is, the lack of adequate theories on the demands of the Constitutions in countries such as Brazil permitted a strong judicial protagonism to form. As a consequence, even against a constitutional text uniquely rich in fundamental social rights, Brazilian interpreters are still trying to find hidden values underneath this strained legal fabric. One of the foundations of judicial activism that has led to fragmentation in the judicial application of law was the phenomenon of panprincipalism . Under panprincipalism, the Court announced that the constitutional principles, the circumstances that facilitated their creation ( sic ), and, in the second phase of panprincipalism, all types of principles (sic) , such as the paradigm of the democratic state of law (rule of law), were the “philosopher’s stone of principled legitimacy” from which the Court could extract both the principles and the rationales needed to solve difficult cases or correct (sic) the uncertainties of language . Hundreds of principles overran the realm of interpretation and the application of the law. These principles greatly undermined the autonomy of the law and the normative force of the Constitution itself. Some of these principles include the principle of proportionality, the principle of least astonishment, the principle of trust, the principle of care, the principle of fait accompli (res judicata), the principle of procedural economy and the principle of confidence in the presiding judge. Are these really “legal principles” in a civil law country? This activism also shows that its ratio has a solipsistic origin, which becomes problematic because democracy and progress depend on the individual positions of judges and courts.

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