BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

In any case, one can only speak of the problem of judicial activism before an effective constitutional jurisdiction is consecrated. One must consider that the constitutionalism that has emerged since the second post- war period is fundamentally post-positivist. All constitutional texts, which are now sets of principles, harbor this new perspective of the law. In this context, the search to preserve the normative force of the Constitution always runs the risk of being undermined by misconceptions founded on the alleged openness of the interpretation process because the surfeit of principles introduce the practical world that have been expunged by the various positivist positions to the law. At this point, the interpretation process transitions from a subject-object scheme to a subject-subject relationship on philosophical grounds. As pointed out by Dworkin in his debate with Hart, positivism is understood, 11 to the limits of this text, by its primary characteristic, discretion, which can be found in the delegation of the power to solve difficult cases to the judges. Undoubtedly, positivism represents the relationship between discretionary behavior (delegated by Hart to the judge) and Kelsen’s decisionism. Thus, under a positivist scheme, the judge/interpreter will be given the discretionary power to choose a solution among several alternatives. The problem with this approach lies in knowing whether the alternatives are legitimate and whether the choice fits the circumstances. Moreover, one must consider the problems caused by this ability to delegate in cases that lie at the mercy of the judge’s discretionary interpretation . The context for all of the evidence was (and still is) the discussion about the conditions of the possibility of achieving a democracy. After all, if someone has to ultimately make a decision, then how can we avoid undermining the legislature, the alleged product of a representative democracy (i.e., a democratic production of the law), through the lack of jurisdictional legitimacy? From both an operational and doctrinal perspective, we can discern at least two types of manifestations for the paradigm of subjectivity, which involves the same questions regarding activism, decisionism and the admission of discretionary power. The first addresses the problem more explicitly by assuming that the act of judging is an act of will, as stated by Kelsen in the eighth chapter of Pure Theory of Law . 12 Within this first group, decisions that implicitly address the interpretation in a solipsistic manner 11 It should be noted that, for the purposes of this treatment in the text, we consider exegetical or legalistic positivism must be overcome. With Kelsen, there was a semantic twist on the interpretation of the law: an isomorphic identity between the words of the law and the factual reality no longer exists. For Kelsen’s clear- cut positivism, the interpretation of law is an act of will that slides inside an open structure metaphorically nominated as a frame of the norm (Pure Theory of Law, Chapter VIII). At this point, we find the space of the discretionary power of the interpreter who applies the norm. I point my weapons at the conformation of this dimension. 12 See how Kelsen’s question of positivism is not superseded in Brazil. On the FSC, one of the oldest judges frequently argues that interpretation is an act of will, as stated by Kelsen in Chapter VIII of his Pure Theory. In a recent pronouncement, the minister affirmed that the decision is a split act in which the first step represents the ideal (sic) construction of a solution for the case and that only in a second phase would he seek a justification of the decision in the legal framework. In the words of Judge Marco Aurelio de Mello, “I idealize for a specific case, the fairest solution and then go to the normative framework. I go to the dogma to seek support. And as the interpretation is above all an act of will, in most cases, I find the necessary support.” (Available at: http://www.stf.jus.br/portal/cms/verNoticiaDetalhe. asp?idConteudo=154675 accessed on: 06.07.2010; also see: http://www.conjur.com.br/2010-jul-06/ idealizo-solucao-justa-depois-vou-ar-normas-marco-aurelio. Accessed on 06/07/2010.

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