The Representative Role of the Judiciary in a Constitutional Democracy

Abstract

In a recent paper, Luís Roberto Barroso, a Brazilian Supreme Court Justice, sustained the exercise of a representative role by the judicial branch (precisely by constitutional courts), as a way to give voice to a majority will not captured by positive legal rules due to the distortions of the institutional mechanisms based on voting (elections and legislative process). This paper aims to investigate whether this claim is compatible with the notion of a constitutional democracy, taking into consideration both the possibility of gauging the empirical will of the majority apart from the institutional mechanisms based on voting and the role of the judicial branch in this kind of society. Finally, it suggests the possibility of acknowledging a representative role to the judiciary based on what
can be argued to be the interest of the citizens of a constitutional democracy as such.