The myth of constitutional neutrality Adjudication and democracy
| Autor | Cássio Corrêa Benjamin - Tiago Lopes Coelho |
| Ocupação do Autor | PhD in Political Science. Professor at the UFSJ (Universidade Federal de São João del-Rei) - Graduated in Law from Escola Superior Dom Helder Câmara |
| Páginas | 592-604 |
592 • XXVI World Congress of Philosophy of Law and Social Philosophy
The myth of constitutional neutrality
Adjudication and democracy
Cássio Corrêa Benjamin1
Tiago Lopes Coelho2
Abstract: The constitutional adjudication keeps being a central problem for de-
mocracy. There are several discussions surrounding this theme. Among them,
problems related to its necessity, who is expected to accomplish such task, the
way it could be carried out, the competency of a court of law and its nature.
Such maers remains a theoretical and practical challenge to democracy. As for
the analysis of questions about the constitutional adjudication, we will resume
some aspects of the Hans Kelsen’s critique of Carl Schmi concerned with the
theme of the guardian of Constitution. The elements of this discussion, which
could already be recognized as classical ones, remain present. We will resume
some points from that debate, mainly that one related to neutrality of those who
exercises the control of constitutionality. This is a crucial question that can
be considered as a polemic axis between Schmi and Kelsen and this will also
reect the aempts to determine the limits between legislation and jurisdiction.
Keywords: constitutional adjudication, democracy, neutrality
We intend to discuss the meaning of the idea of neutrality by re-
suming the Kelsen’s critique of Schmi about the “Guardian of the Con-
stitution”. Although both authors have divergences in relation to “char-
acter” or “status” of the “guardian” gure, that is, if it is under the ambit
of a political or judicial maer, its alleged neutrality seems evident and
necessary. This neutrality is necessary due to alleged asymmetry of this
1
PhD in Political Science. Professor at the UFSJ (Universidade Federal de São João del-
Rei). Email: ccbenj@yahoo.com
2
Graduated in Law from Escola Superior Dom Helder Câmara. Member of GPES (Re-
search Group in Health Economics) in the Medical School at UFMG (Universidade Fed-
eral de Minas Gerais). E-mail: tiago.lopesc@yahoo.com.br
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