Abstract
As a practical presentation of the problems arising from the deployment of balancing in constitutional cases, this chapter aims to introduce the analysis of three relevant constitutional decisions, the Crucifix and Cannabis cases, of the German Federal Constitutional Court (Bundesverfassungsgericht), and the Ellwanger case, of the Brazilian Federal Supreme Court (Supremo Tribunal Federal). By exploring the opinions therein contained, different relevant discussions appear, such as the dualism between axiology and deontology in decision-making, the politicization of judicial review, the flexibility and capacity of balancing to support distinct types of arguments, opening thereby the possibilities to further critically review, directly from the practice of decision-making, how balancing can cause serious outcomes to the principle of separation of powers, and thus to constitutional democracy.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
See the eighth chapter.
- 2.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 3.
According to article 93, 4a of the German Basic Law, the Verfassungsbeschwerde is a constitutional complaint “which may be filed by any person alleging that one of his basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101, 103, or 104 has been infringed by public authority.” It is the main instrument of judicial review in Germany. For a detailed analysis of its characteristics, see Bodo Pieroth and Bernhard Schlink, Grundrechte: Staatsrecht II (Heidelberg: C. F. Müller, 2006), 289–304; Christian Hillgruber and Christophh Goos, Verfassungsprozesrecht (Heidelberg: C. F. Müller, 2004); Bodo Pieroth, Verfassungsbeschwerde: Einführung, Verfahren, Grundrechte (Münster: ZAP Verlag, 2008).
- 4.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 5.
This is the description of the conflict according to the BVG’s report:
“Complainants 3)–5) are the school-age minor children of complainants 1) and 2). The latter are followers of the anthroposophical philosophy of life as taught by Rudolf Steiner, and bring up their children accordingly. Since their eldest daughter, complainant 3), went to school they have been objecting to the fact that in the schoolrooms attended by their children first of all crucifixes and later in part crosses without a body have been affixed. They assert that through this symbol, in particular through the portrayal of a “dying male body,” their children are being influenced in a Christian direction; which runs counter to their educational notions, in particular their philosophy of life.
When complainant 3) entered school in late summer 1986, in her classroom there was a crucifix with a total height of 80cm and a 60cm high representation of the body affixed, directly in the field of view of the blackboard. Complainants 1) and 2) asked for removal of this crucifix and declined to send complainant 3) to school as long as she was exposed to that sight. The conflict was initially settled by exchanging the crucifix for a smaller cross without body, affixed over the door. The disputes between complainants 1) and 2) and the school administration however flared up again when their other children went to school and when complainant 3) changed class and finally school, because crucifixes were again affixed in the schoolrooms. By not sending their children to school, sometimes for fairly long periods, complainants 1) and 2) repeatedly secured the compromise solution again (small cross with no body, at the side above the door) for the classrooms, but not for the other schoolrooms. The school administration, moreover, gave complainants 1) and 2) no assurance that the compromise would be kept to at every change of class.
For a time the three children attended a Waldorf school; however, for lack of the necessary funds, this remained only a transitory attempt to resolve the conflict.
In February 1991 complainants 1) and 2) brought an action against the Free State of Bavaria before the administrative court, in their own behalf and that of their children, with the aim of having the crosses removed from all rooms frequented or yet to be frequented in public schools by their children in connection with attending school. At the same time they applied for the issuing of a temporary order pending conclusion of the action for removal of crucifixes.” BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 6.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 7.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 8.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 9.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 10.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 11.
BVerfGE 93, 1 – Kruzifix Translation: Institute for Transnational Law.
- 12.
This principle, according to the BVG through Konrad Hesse´s Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland (Heidelberg: Müller, 1999), “requires that no one of the conflicting legal positions be preferred and maximally asserted, but all given as protective as possible an arrangement.” BVerfGE 93, 1 – Kruzifix. Institute for Transnational Law.
- 13.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 14.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 15.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 16.
BVerfGE 93, 1 – Kruzifix Translation: Institute for Transnational Law.
- 17.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 18.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 19.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 20.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 21.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 22.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 23.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 24.
The BVG’s majority opinion also took the precept of tolerance into account, when it sustained that “resolving the unavoidable tension between negative and positive religious freedom while taking account of the precept of tolerance is a matter for the Land legislature, which must through the public decision making process seek a compromise acceptable to all.” BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 25.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 26.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 27.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 28.
Sonja M. Esser, Das Kreuz – ein Symbol Kultureller Identität? Der Diskurs über das 'Kruzifix-Urteil (1995) aus kulturwissenschaftlicher Perspektive (Münster, New York, München, Berlin: Waxmann, 2000), 33, translation mine.
- 29.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 30.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 31.
We can see this in the following argumentation: “The affixation of the cross cannot be justified from the positive religious freedom of parents and pupils of the Christian faith either. Positive religious freedom is due to all parents and pupils equally, not just the Christian ones. The conflict arising cannot be resolved according to the majority principle, for the fundamental right to religious freedom specifically is aimed in a special degree at protecting minorities. Moreover, Art. 4(1) Basic Law does not confer on the bearers of the fundamental right an unrestricted entitlement to activate their religious convictions in the context of State institutions.” BVerfGE 93, 1 – Kruzifix Translation: Institute for Transnational Law.
- 32.
BVerfGE 93, 1 – Kruzifix Translation: Institute for Transnational Law.
- 33.
BVerfGE 93, 1 – Kruzifix Translation: Institute for Transnational Law.
- 34.
BVerfGE 93, 1 – Kruzifix Translation: Institute for Transnational Law.
- 35.
BVerfGE 90, 145 – Cannabis, translation mine.
- 36.
See the next chapter.
- 37.
See the second and third chapters.
- 38.
See the fourth chapter.
- 39.
See the fourth chapter.
- 40.
According to article 100, 1, of the German Basic Law, “if a court concludes that a law on whose validity its decision depends is unconstitutional, the proceedings shall be stayed, and a decision shall be obtained from the Land court with jurisdiction over constitutional disputes where the constitution of a Land is held to be violated, or from the Federal Constitutional Court where this Basic Law is held to be violated. This provision shall also apply where the Basic Law is held to be violated by Land law and where a Land law is held to be incompatible with a federal law.” Accordingly, the Richtervorlage is a submission of a legal matter from an ordinary court to the constitutional court whenever the possible unconstitutionality of a legal norm is at issue.
- 41.
Justice Graßhof agreed with the final decision; however, he defended, after a long theoretical explanation on the principle of proportionality and the social consequences caused by drugs, a more severe point of view of the general harmful effects of cannabis products for society. On the other hand, Justice Sommer understood differently from the majority. According to him, in this particular case, the Narcotic Act, even though establishing a mechanism for refraining from prosecution and condemnation, offended article 2 (I), (II) of the Basic Law, based, mainly, on the principle of proportionality in its narrow sense.
- 42.
BVerfGE 90, 145 – Cannabis, translation mine.
- 43.
BVerfGE 90, 145 – Cannabis, translation mine.
- 44.
BVerfGE 90, 145 – Cannabis, translation mine.
- 45.
BVerfGE 90, 145 – Cannabis, translation mine.
- 46.
BVerfGE 90, 145 – Cannabis, translation mine.
- 47.
BVerfGE 90, 145 – Cannabis, translation mine.
- 48.
BVerfGE 90, 145 – Cannabis, translation mine.
- 49.
BVerfGE 90, 145 – Cannabis, translation mine.
- 50.
BVerfGE 90, 145 – Cannabis, translation mine.
- 51.
BVerfGE 90, 145 – Cannabis, translation mine.
- 52.
The BVG exposed clearly that it “cannot consider whether the legislature's decision was the most suitable, reasonable or just way to solve the problem at issue. The court’s role is merely to check whether the substance of the penal provision is compatible with the constitutional provisions and accords with the Basic Law’s fundamental values and the unwritten principles underlying the Constitution.” BVerfGE 90, 145 – Cannabis, translation mine.
- 53.
BVerfGE 90, 145 – Cannabis, translation mine.
- 54.
According to this element, the means must prove itself suitable to achieve the desirable goal.
- 55.
BVerfGE 90, 145 – Cannabis, translation mine.
- 56.
According to this element, the means must prove itself less harmful to the private’s sphere than any other suitable means.
- 57.
BVerfGE 90, 145 – Cannabis, translation mine.
- 58.
BVerfGE 90, 145 – Cannabis, translation mine.
- 59.
BVerfGE 90, 145 – Cannabis, translation mine.
- 60.
BVerfGE 90, 145 – Cannabis, translation mine.
- 61.
BVerfGE 90, 145 – Cannabis, translation mine.
- 62.
BVerfGE 90, 145 – Cannabis, translation mine.
- 63.
Unlike the BVG’s opinion, Justice Sommer clearly affirmed that, after a long examination of the facts and legislation, the state’s intrusion was not petty, but of high intensity. According to him, the Narcotic Act provisions, as such characterized, could no longer be considered proportionate in its narrow sense in the case of own consumption of small amount of the drug, and, therefore, the criminalization was not justifiable. Moreover, even if the legislator created a mechanism, according to §§ 29 V and 31a BtMG, for refraining from condemnation and the criminal prosecution, the principle of proportionality in its narrow sense kept violated. He also criticized the perspective of a possible use of the criminal law in a “more symbolically” way and the possible interpretations of this exception by each different Länder. Therefore, the criminal law had to specify what was punishable or not. BVerfGE 90, 145 – Cannabis, translation mine.
- 64.
BVerfGE 90, 145 – Cannabis, translation mine.
- 65.
BVerfGE 90, 145 – Cannabis, translation mine.
- 66.
BVerfGE 90, 145 – Cannabis, translation mine.
- 67.
BVerfGE 90, 145 – Cannabis, translation mine.
- 68.
The court mentioned the possibility of pushing the individual into the drugs world and causing him to develop a sense of solidarity with it. BVerfGE 90, 145 – Cannabis, translation mine.
- 69.
BVerfGE 90, 145 – Cannabis, translation mine.
- 70.
Robert Alexy, “On the Structure of Legal Principles,” Ratio Juris 12, no. 4 (September 2000): 298.
- 71.
BVerfGE 90, 145 – Cannabis, translation mine.
- 72.
BVerfGE 90, 145 – Cannabis, translation mine.
- 73.
BVerfGE 90, 145 – Cannabis, translation mine.
- 74.
Indeed, as Bernhard Schlink describes:
“(…) The Bundesverfassungsgericht does not speak expressly of principles as rules of optimization. However, constitutional scholarship correctly observes that a relative conception of fundamental rights as rules of optimization harmonizes well with the conception of them as objective principles. The concept of principle, or rule of optimization, was coined especially to categorize the content of fundamental rights resulting from the Bundesverfassungsgericht’s development from conceiving of fundamental rights as subjective rights to seeing them as objective principles” (Bernhard Schlink, “German Constitutional Culture in Transition,” Cardozo Law Review 14 (1993): 718).
- 75.
The problem is not to understand that the principle of free development of personality combined with the right to freedom was not applied to the case, but its deontological weakening by the emphasis on arguments of efficiency (what is good for society and what can bring about better social results).
- 76.
BVerfGE 90, 145 – Cannabis, translation mine.
- 77.
BVerfGE 90, 145 – Cannabis, translation mine.
- 78.
BVerfGE 90, 145 – Cannabis, translation mine.
- 79.
According to the BVG, these other factors could be: “(1) the different possibilities of their utilization (…); (2) the significance of these various uses to social life; (3) the legal and factual possibilities to face the abuse with success; (4) the possibilities and requirements of an international cooperation in controlling and combating narcotics and the criminal organization dealing with them”. BVerfGE 90, 145 – Cannabis, translation mine.
- 80.
BVerfGE 90, 145 – Cannabis, translation mine.
- 81.
BVerfGE 90, 145 – Cannabis, translation mine.
- 82.
BVerfGE 90, 145 – Cannabis, translation mine.
- 83.
Both Justices Graβhof and Sommer attacked the BVG’s majority opinion by also introducing axiological arguments (the first emphasized the drug social effects, and the second the disproportionate state’s interference with the private sphere through the principle of proportionality in its narrow sense). The debate, for this reason, centered on a conflict of personal interpretations of social values, more than a serious debate on legal rights.
- 84.
See the third chapter.
- 85.
See the third chapter.
- 86.
The Superior Tribunal de Justiça is the Brazilian highest court for infra-constitutional matters, whereas the Supremo Tribunal Federal is the Brazilian highest court for constitutional matters.
- 87.
The judgment took place in different sessions, and the final decision was made on 09.17.2003 (published on: 03.19.2004).
- 88.
The contents of these books could, according to the Brazilian legislation, be considered a practice of racism, and thus, a crime. Particularly in this case, although we will not enter into this debate, the title of his book was suggestive – Jewish or German Holocaust – Behind the Lie of the Century –, and the others he published were in this direction: The International Jew, by Henry Ford; Hitler – Guilty or Innocent, by Sérgio Oliveira; The Conquers of the World – The Real War Criminals, by Louis Marschalko, and the famous anti-Semitic The Protocol of the Elders of Zion, translated by Gustavo Barroso (In Portuguese: Holocausto Judeu ou Alemão – Nos Bastidores da Mentira do Século; O Judeu Internacional; Hitler – Culpado ou Inocente?; Os Conquistadores do Mundo – Os Verdadeiros Criminosos de Guerra; Os Protocolos dos Sábios de Sião). Besides, by reading Justice Maurício Corrêa’s opinion, we can verify many references to the contents of these books, which clearly demonstrate their discriminatory purpose.
- 89.
HC 82.424-2/RS, translation mine.
- 90.
HC 82.424-2/RS – Report, translation mine.
- 91.
HC 82.424-2/RS – Report, translation mine.
- 92.
Justice Moreira Alves’s opinion, normally known for his conservatism, revealed this understanding. According to him, “the question posed in this ‘habeas corpus’ is to determine the meaning and the reach of the expression ‘racism’.” The central question, therefore, involved the semantic definition of the extension of the term racism as a means to conclude whether it comprised, in its contents, the discrimination against Jews. Through the emphasis on the Brazilian historical tradition, Justice Alves stated that the crime of racism ought to apply merely to the black race. For him, “since the Constitution did not define racism, it seems that it ought to be restricted to the idea of race as usually understood – that is, the white, the black, the yellow, the red (…).” Moreover, “in Brazil there is no persecution of Jews nor, evidently, any vestige of holocaust to inspire the Brazilian Constitution’s framers to include, in the Constitution, the imprescriptibility of the crime of racism.” Apart from this controversial interpretation of history, Justice Alves added an originalist justification to his statement: “When the action was received, in 1991, there was not the scientific notion of genome yet, which transpired in 2000, and thus the Constitution of 1988 could not have taken it into consideration, when it refers to prejudice of race.” By the same token, he, by limiting the concept of racism to “black people,” brought forward a teleological apprehension about the possibility of extending it excessively, creating thereby a norm of open content: “(…) If we give to the constitutional term ‘racism’ the amplitude we now intend to give, with the meaning reaching any human groups with their own cultural characteristics, we will have the crime of racism as a norm of open content, for human groups with cultural characteristics are numerous, and not only, besides Jews, Curds, Basques, Galicians, Gypsies, these last groups we could not talk about the holocaust in order to justify its imprescriptibility” (HC 82.424-2/RS – Justice Moreira Alves’s opinion, translation mine).
- 93.
Justice Maurício Corrêa’s opinion worked with a variety of usual arguments in decision making: (1) a terminological interpretation of the legal term (in the case, racism); (2) a historical investigation by stressing many facts of the Jewish past; (3) an originalist approach by disclosing the mens legislatoris; (4) a legal argumentation focused on the limits of freedom of speech. However, the extensive opinion – approximately with thirty-nine pages – despite its well-structured development and persuasive strength, still attempted to manage the terminological discussion of race and developed a very traditionalist perspective of history. Although interesting in this scenario, it transferred the problem of collision of legal principles only to the final part, when the limits of freedom of speech came finally to the scene. Notwithstanding that legal principles were put into perspective at the end of his opinion, the need to define a “rational criterion” for this purpose appeared. It was there again the principle of practical concordance, as a mechanism to “proceed to a constitutional balancing” of legal principles, with the presumption that the committed discrimination could not be erased from people’s memory. Although the first intention could be seen as an argument of policy – to erase the discrimination from people’s memory – Justice Maurício Corrêa’s opinion, at least, defended the force of legal principles when he, by criticizing Justice Alves’ opinion, remarked that “limiting racism to a simple discrimination of races by considering only the lexical or common meaning of the term implies the denial itself of the equality principle, which opens up the possibility of discussion of the limits of legal rights by a determined part of society, something that puts into checkmate the very nature and prevalence of human beings. Conditioning the discrimination as an imprescriptible crime only to black people and not to Jews is to accept as unequals those who are, in essence, equals before this guarantee. It seems to me, data venia, an unacceptable conclusion.” (HC 82.424-2/RS – Justice Mauricio Corrêa’s opinion, translation mine).
- 94.
Justice Celso de Mello concentrated his argumentation on the importance of international treaties, the principle of dignity and the equality principle. By emphasizing similar arguments as the ones adopted by Justice Corrêa, he supported the argument that the books had a discriminatory purpose and, therefore, configured a crime. He also mentioned that the freedom of speech could not extinguish the crime of racism in this particular case, to the extent that it “does not constitute a means that can legitimate the externalization of criminal purposes, especially when expressions of racial hate – propagated by overstepping the limits of political critique or historical opinion – transgress, in an unacceptable way, the values protected by the constitutional order.” Furthermore, he made a fast reference to rational criteria to resolve conflicts of rights, for “the use of a method of balancing goods and interests does not result in the emptiness of the essential content of fundamental rights.” In the confirmation of his opinion, he emphasized that, although the freedom of speech must be preserved in a democratic society, it is not an absolute principle, insofar as abuses and crimes can be committed. He also stressed the deontological force of legal principles and sustained the need to proceed, as before, to a concrete balancing of legal principles (HC 82.424-2/RS – Justice Celso de Mello’s opinion, translation mine).
- 95.
Justice Carlos Velloso defended, from the discussion of the actual importance of human rights through the analysis of international treaties, doctrine and Brazilian legislation, the argument that minorities must be protected in constitutional democracies. He did not add any new analysis. Instead, he repeated the terminological emphasis on the concept of race to ascertain that any type of discrimination is embraced by the concept of race. Additionally, he affirmed that the freedom of speech is not absolute, and hence cannot be used as an argument when there are intolerance and incitation to violence against human dignity.
- 96.
Justice Nelson Jobim also attempted to defend a broad meaning of the concept of race through the investigation of its contents throughout history. He affirmed that, notwithstanding its original purpose related to the black people, it gained nowadays a much broader meaning, and, thus, the imprescriptibility of the crime had to be applied to this particular case. In the confirmation of his opinion, he developed an analysis of the democratic procedure, in which he sustained the equality principle as a condition for democracy and for the freedom of speech. He also mentioned the dialectical evolution of legal principles in opposition to an emphasis on the mens legislatoris.
- 97.
Justice Carlos Ayres Britto, after a long explanation of the inherently conflictive character of constitutional principles, concentrated part of his opinion on discussing criminal and procedural issues. Then, a semantic and grammatical investigation took place in order to identify the extension of each term of the constitutional norm, the difference between use and abuse of freedom of speech, and the usual comprehension of the concept of racism and discrimination. However, he mentioned that, in conformity with the Brazilian legislation (article 5, VIII, of the Constitution), there are three exceptions of abuse: religious belief, philosophical conviction and political conviction. After having analyzed those books, Justice Carlos Ayres Britto understood that they were “a work of historical research” and had a revisionist content. Thus, we could regard them as manifestations of the freedom of speech and the intellectual and scientific production sphere. He remarked that expressing an ideology is not a crime, based on the premise of a plural society and Brazilian legislation, which protects political-ideological convictions. It is interesting to mention that, in the confirmation of his opinion, his interpretation of the contents of those books was severely contradicted by the other Justices.
Similarly, Justice Ellen Gracie focused almost merely on the investigation of the actual debates on the concept of race and argued that racism embraces all types of discrimination and prejudice.
In his turn, Justice Cezar Peluso sustained the point of view that the Constitution did not adopt a scientific concept of race, but rather a normative concept, which we must comprehend through a teleological interpretation in decision-making. Considering the systematic publication of books of discriminatory contents, which attack the Constitution and overstep the limits of the freedom of speech, his opinion oriented towards denying the habeas corpus.
Justice Sepúlveda Pertence, as well, adopted a social-cultural concept of race to defend the position that racism embraces discrimination against Jews. Besides, he argued that a book is able to incite racism, and, in this particular case, the contents of the works investigated led to the conclusion that they could not be considered a revision of the traditional history.
- 98.
It is important to mention that Justice Gilmar Mendes has a solid constitutional-dogmatic knowledge, particularly originated from his doctoral studies in Germany, where he worked hardly with judicial review and comparative studies between German and Brazilian reality. He has written important books in this field, such as Die abstrakte Normenkontrolle von dem Bundesverfassungsgericht und vor dem brasilianischen Supremo Tribunal Federal (Berlin: Dunker Humblot, 1991); Jurisdição Constitucional: Controle Abstrato de Normas no Brasil e na Alemanha (São Paulo: Saraiva, 2004); Controle de Constitucionalidade: Aspectos Jurídicos e Políticos (São Paulo: Saraiva, 1990); Direitos Fundamentais e Controle de Constitucionalidade (São Paulo: Saraiva, 2004).
- 99.
Texts of Norberto Bobbio, Kevin Boyle, Pierre-André Taguieff, as well decisions of the American Supreme Court and the British Chamber of Lords.
- 100.
HC 82.424-2/RS. Justice Mendes’ opinion, translation mine.
- 101.
HC 82.424-2/RS. Justice Mendes’ opinion, translation mine.
- 102.
HC 82.424-2/RS. Justice Mendes’ opinion, translation mine.
- 103.
See Robert Alexy, Theorie der Grundrechte (Frankfurt a.M: Suhrkamp, 1994).
- 104.
HC 82.424-2/RS. Justice Mendes’ opinion, translation mine.
- 105.
Alexy, Theorie der Grundrechte, 100, translation mine.
- 106.
According to Robert Alexy, “The German Federal Court has said, in a somehow vague expression, that the principle of proportionality already results fundamentally from the very nature of basic rights” (Ibid., 100, translation mine).
- 107.
HC 82.424-2/RS. Justice Mendes’ opinion, translation mine.
- 108.
HC 82.424-2/RS. Justice Mendes’ opinion, translation mine.
- 109.
FC: Brazilian Federal Constitution of 1988.
- 110.
HC 82.424-2/RS. Justice Mendes’ opinion, translation mine.
- 111.
HC 82.424-2/RS. Justice Mendes’ opinion, translation mine.
- 112.
HC 82.424-2/RS. Justice Mendes’ opinion, translation mine.
- 113.
In the confirmation of his opinion, Justice Gilmar Mendes introduced many other interesting examples of important American and European decisions that worked with this conflict between the freedom of speech and the right to nondiscrimination (equality principle).
- 114.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 115.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 116.
“The only possible restriction on the freedom of speech, in a justifiable manner, is in its way of expression, that is, how this thought is diffused.” HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 117.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 118.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 119.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 120.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 121.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 122.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 123.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 124.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 125.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 126.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 127.
Justice Marco Aurélio expressed this understanding in the quotation below, whose naturalistic character was clearly reinforced:
“I did not find, by analyzing the Constitutional Assembly’s proceedings, any mention, even one, to the Jewish people when racism was discussed. The explanation, for me, is evident. The Constitution of 1988 is a Constitution of the Brazilian people, to be applied to the Brazilian people and tended to solve our own problems. There is not any statement of racism against Jews and, on the other hand, there are pages and more pages of manifestations to stop the racism against black people, because the Constitution of 1988 is not a Constitution of the German, French, Italian, Polish, Austrian or European people in general.” HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 128.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 129.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 130.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 131.
See note 95 supra.
- 132.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 133.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 134.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 135.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 136.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 137.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 138.
HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine.
- 139.
In his opinion, besides, many other worldwide well-known judgments were used as examples for the prevalence of freedom of speech in similar contexts, such as the Lüth Case (BverfGE 7, 198, 01.15.1958), Book of War Case (BverfGE, 90, 1–22, 01.11.1994), Murderers Soldiers Case (BverfGE 93, 266–312, 10.10.1995), Pornography Romance Case (BverfGE 83,130, 11.27.1990), of the German Bundesverfassugsgericht; Terminiello v. Chicago Case (337 U.S. 1 – 1949), R.A.V. v. City of St. Paul (505 U.S. 337 – 1992), Texas v. Johnson (491 U.S. 397 – 1989), of the American Supreme Court; and the case of a comic publication against the Jewish people, judged by the Spanish Constitutional Court – Sentencia 176/1995, 12.11.1995.
- 140.
After all, based on what could he defend that a group, and not another, was discriminated in a society and why is a general predisposition to discrimination the main argument to qualify an act as racist? Following the words of Nicklas Luhmann in a brilliant text that demystifies naturalistic considerations, after all, “it cannot be assumed anymore that the relations between cause and effects are objective facts of the world, based on which it would be therefore possible to proceed to true and false judgments” (Luhmann, N. (1995). Kausaliät im Süden. Soziale Systeme 1, 1, 7–28.), http://www.soziale-systeme.ch/leseproben/luhmann.htm (accessed June 2nd, 2009), translation mine.
- 141.
Justice Marco Aurélio, moreover, attacked the opposite argument by emphasizing that relativizing freedom of speech, in this case, would represent a symbolical function, for it would project a political correct image before the society. Thus, instead of examining the particularities of the case, the court should, in reality, act in order to please a social clamor. See HC 82.424-2/RS. Justice Marco Aurélio’s opinion.
- 142.
As we can observe in his opinion, the discrimination in Brazil can only historically and traditionally be deemed against other groups. In his words, “it would be easier to defend the idea of restricting the freedom of speech, if the issue in this habeas directed to the crucial problems challenged in Brazil, such as the theme of integrating the black people, the Indians or the people from the Northeast into the society.” Racism, thus, could only be effectively practiced if a particular group had been traditionally victim of discrimination, which was not the case of Jews. Were other group the victim in this case, the decision would point to other direction, inasmuch as a prejudged book against black people would have much more chance of representing a real threat to the dignity of those people, because in Brazil it would not be difficult to find adepts at those thoughts. (HC 82.424-2/RS. Justice Marco Aurélio’s opinion, translation mine).
- 143.
See the eighth chapter.
- 144.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 145.
BVerfGE 93, 1 – Kruzifix. Translation: Institute for Transnational Law.
- 146.
See the second chapter.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2010 Springer-Verlag Berlin Heidelberg
About this chapter
Cite this chapter
Benvindo, J.Z. (2010). An Approach to Decision-Making. In: On the Limits of Constitutional Adjudication. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-11434-2_1
Download citation
DOI: https://doi.org/10.1007/978-3-642-11434-2_1
Published:
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-642-11433-5
Online ISBN: 978-3-642-11434-2
eBook Packages: Humanities, Social Sciences and LawPhilosophy and Religion (R0)