Law, Interpretation and Democracy: a study on the intersection between legal indeterminacy and the separation of powers

• Grant number: 24/09861-3
• Support Opportunities: Scholarships in Brazil - Doctorate (Direct)
• Start date: June 01, 2025
• End date: December 31, 2027
• Field of knowledge: Applied Social Sciences - Law - Theory of Law
• Principal Investigator: Lucas Fucci Amato
• Grantee: Rodrigo Marchetti Ribeiro
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The aim of the research is to advance a critique of the classic models of separation of powers, exploring the extent to which these institutional arrangements are compatible or not with the advent of mass democracy and the role of constitutional jurisdiction, and delimiting this function based on its potential to guarantee the conditions of a pluralistic social and political order and to overcome indeterminacy in the interpretation of law. Two hypotheses guide the exploration of this interface between political science and legal theory debates. The first is that the concept of defeasibility can be revised and deepened as a Hart-inspired response to Dworkin's interpretivist challenge, and that such a concept has the potential to help describe, critique and normatively delimit the role of constitutional jurisdiction in a context in which the separation of powers is associated with - and to some extent overcome by - a dynamic of pluralist electoral competition (as Dahl suggests in his critique of The Federalist). The second hypothesis is that it is possible to suggest traits of an institutional model of constitutional jurisdiction that is suitable for the separation of powers within a polyarchy (i.e. a political regime with a high degree of public contestation and participation) and capable of fulfilling the role of preserving or promoting the conditioning factors of a pluralist social order. Based on a genealogical effort to review models of separation of powers and visions of the indeterminacy of law, we propose to test the hypotheses in the analysis of the syncretism of the Brazilian constitutional model, particularly in the area of constitutionality control, in its combination of influences on both the institutional design and the interpretative practice of the Federal Supreme Court (STF).