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NUMERO 1 - 13/01/2010

dottrina » dottrina » forum - di Gilmar Mendes

 Politics and law in constitutional adjudication

It has been almost eighty years since the famous debate between Hans Kelsen and Carl Schmitt on who should guard the Constitution. Today, we are here to partipate on this ongoing discussion in which, to some extent, every constitutionalist since then has participated in some way. Recognizing the supremacy of the Constitution and its binding force with regard to the branches of Government will undoubtedly entail a discussion about the ways and means to safeguard the Constitution and the need to review the constitutionality of acts enacted by the Legislative and Executive powers.Constitutional judicial review is one of the most important creations of constitutional law and political science in the modern world. Moreover, the adoption of a wide range of forms by the various constitutional systems demonstrates its flexibility and capacity to adapt to a wide range of political systems.
In Brazil, the judicial review system underwent substantial change with the enactment of the 1988 Constitution. After a military regime that lasted for over 20 years, the new constitutional model, initiated twenty-one years ago, sought to institutionally overcome a model of democracy that was strogly formal, and with which we had grown accustomed to in the past... 
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* L'autore è Presidente del Tribunale Federale Supremo del Brasile e il discorso è stato tenuto in occasione delle celebrazioni per il ventennale della Corte costituzionale ungherese.



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