The judicial oversight of the democratic process: a republican approach

• Grant number: 20/14365-4
• Support Opportunities: Scholarships in Brazil - Doctorate
• Effective date (Start): October 01, 2021
• Effective date (End): March 16, 2024
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal Investigator: Luís Virgílio Afonso da Silva
• Grantee: Pedro Marques Neto
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The thesis investigates whether and based on which type of reasons constitutional courts should oversee the organization of the democratic process performed by the parliament, given the countermajoritarian difficulty associated with the institution of judicial review and the regulatory complexities associated with the process of designing legitimate electoral institutions. The thesis conceives of democratic rights as individual rights aimed at protecting their individual interests to political participation, but whose exercise hinges on the existence of a complex institutional infrastructure. Thus, it argues that courts should not directly attemptto protect (or maximize) democratic goods (e.g. political equality or competition), but rathertry to prevent (or minimize) a certain type of harm to democratic rights: the harm associated with domination. The thesis also has an empirical ambition, which involves the qualitative analysis of selected decisions of the Brazilian Supreme Court (STF) on democratic rights. Bydoing so, it will evaluate the compatibility of the theoretical exploration previously carried out with the Brazilian legal reality and institutional context, such as, for instance, the existence of an electoral court (Brazilian Superior Electoral Court) focused exclusively on the oversight of the electoral process. (AU)