Judicial review and democracy: the debate between Ronald Dworkin and Jeremy Waldron

• Grant number: 11/21312-5
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Effective date (Start): March 01, 2012
• Effective date (End): February 28, 2013
• Field of knowledge: Applied Social Sciences - Law - Theory of Law
• Principal Investigator: Ronaldo Porto Macedo Junior
• Grantee: Renan Barbosa Fernandes
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The practice of judicial review has gained increasing importance in the debate about western democracies. The fundamental point of this project is to investigate the compatibility between democracy and this particular institutional arrangement based on a seminal debate that has been established between Ronald Dworkin and Jeremy Waldron. Considering that both authors acknowledge the convergence between democracy and the guarantee of rights, the debate is centered on the institutional arrangements that give effect to these rights without harassing democratic procedures. Firstly, it will be necessary to assess the theoretical dimension of the debate in order to understand if the existence of a court of law competent to derogate legislation enacted through valid procedures could be legitimated on the idea of democracy or if the existence of such a court is invariably a non-democratic option. In other words, it will be necessary to precise if the definition of democracy should be purely procedural or if it is possible to tie it to substantive considerations. Secondly, this project aims to investigate if the conception of democracy developed by Ronald Dworkin necessarily implicates the existence of a court of law like STF. If the objections perpetrated by Jeremy Waldron are accepted, Ronald Dworkin´s theory will remain an attractive conception of democracy only in the case of not requiring one determinate institutional arrangement, which would give it relevance on the debates of countries other than the USA.