REPUBLICANISM AND THE JUDICIALIZATION OF POLITICS: ANTIDOTES AGAINST THE UNEASINESS OF THE ALLEGED PARADIGMATIC CRISIS

des antidotes au malaise de la supposée crise paradigmatique

Abstract

Contextualization: The uneasiness with the judicialization of politics is generally associated with the supposed paradigmatic anomaly related to the principle of separation of powers. The rigid or flexible division or distribution of powers would be transgressed by the expansion of the judiciary. It has been observed, however, that the doctrine of separation of powers in many places is much more heir to the old theory of mixed government than to some revolutionary theory of rigid division of powers. This recontextualization also brings back republicanism as a reference for a well-ordered society.

Objective: This article analyzes some republican institutional designs proposed at the end of the 20th century, especially those that grant or deny a certain role to the judicial body. This paper discusses whether or not the judicialization of politics is an indication of an anomaly in the theory of separation of powers, based on the republican paradigm.

Method: The research uses the dialectical method, as the investigation is based on argumentation strategies and a review of classical doctrine. The bibliographic research technique is used to analyze literature, compare, and confront concepts, classifications and distinctions.

Results: Based on this research, it can be inferred that the so-called “crisis of the separation of powers” , or its corollary, the “judicialization of politics”, do not really consist of an anomaly in terms of the design of balance between executive, legislative and judiciary, but as an effect of the increasing dominance of democratic rhetoric over the mixed government doctrine.