Política e jurisdição: sobre a legitimidade e as responsabilidades na democracia

Abstract

This undergraduate thesis provides an in-depth analysis of the contemporary debate regarding the political role of the Judiciary, its limits of action, and the legitimacy of decisions rendered by unelected judges that may decisively shape the political destiny of society and restrict the alternatives available to other democratically constituted branches of government. The central question is to what extent courts may issue decisions with political content, embedding within them their own moral judgments. At the same time, the work examines the relationship between responsibility and democracy, noting that the punishment of electorally defeated authorities may take on the contours of political retaliation. This raises the question of what responsibilities elected winners owe to their opponents and to the citizens who supported the latter. Such concerns permeate debates about the management of public resources, diversity within the courts, and the rhetoric of authorities, under the perception that in a democratic society those in power must act responsibly, respect diverse opinions, and acknowledge the equal status of all. Within this framework, it becomes necessary to conceptualize “responsibility” in order to elucidate the central issue, by investigating the reciprocal obligations between citizens and authorities: if all individuals bear duties simply by virtue of living in a democracy, what are those duties in concrete terms, and what role does Law play in their realization? The methodology adopted is organized into thematic chapters. Following the introduction, the second chapter examines the political nature of Law and judicial decisions, questioning whether judges can adjudicate complex cases in a politically neutral manner and analyzing, in light of Ronald Dworkin’s thought, proposals aimed at excluding political judgments from judicial reasoning. The argument advanced is that Law has a political foundation and that every judicial decision necessarily involves choices of political morality. The third chapter explores whether judicial decisions with political content threaten democracy, focusing on the debate between Dworkin and Jeremy Waldron concerning constitutional judicial review, contrasting Waldron’s arguments against review with the opposing perspective that considers the “equal respect and concern” principle as a fundamental democratic value. The fourth chapter deepens the analysis of this egalitarian value: it clarifies the concept of responsibility in its legal, moral, and political dimensions (drawing inspiration from Paul Ricoeur’s semantic analysis) and highlights the importance of equality as both a political and moral principle underpinning the very idea of justice. This section also examines the mutual responsibilities among citizens (emphasizing Seana Shiffrin’s reflections on mutual respect and civic trust) and between authorities and the governed, asking what obligations we may legitimately demand of one another in light of this principle. Still within this part, the duties of judges are reinterpreted from the standpoint of political responsibility: to act with rigorous impartiality, respect due process of law, maintain consistency in the principles applied, and uphold an unshakable commitment to human dignity. Finally, the fifth chapter reflects on the elements of a judicial ethic inspired by moral philosophy, defending that democratic judges must be fully aware of their role in order to exercise it both ethically and appropriately.