Constitutional activism is the modern version of the well-known judicial activism, considered as the interference of the Judiciary in the Executive and Legislative spheres. This phenomenon is the result of the Democratic Constitutional Rule of Law itself, which authorizes the effective participation of the Judiciary to enforce constitutional norms in the field of action of the other two Powers. Constitutional justice activism was the subject of the sixth panel, on the second working day of the 7th Lisbon Legal Forum.

Paulo Gustavo Gonet Branco, Deputy Attorney General of the Republic, PhD in Law, State and Constitution from the University of Brasília (UnB) and Professor at the IDP, mediated the debates at this panel, pointing out that the history of constitutional activism has a lot to do with the complexity of societies, in the present, which coexist with various narratives of the same fact, which may result in confusion and disagreement: “It is important to analyze the facts with a technical perspective and intellectual honesty, which is what we will do today”.

Maria Lucia Amaral, Portuguese Ombudsman, Full Professor at the Universidade Nova Law School and Former Vice-President of the Constitutional Court recalled, in her speech, the origin of the term judicial activism. “In its genesis, this is an idea of a journalistic conception,” he said, recalling that, in 1947, the American journalist Arthur Schlesinger Jr. coined the expression in an article published in the magazine Fortune. “Nobody knew what the term meant for constitutional science. With this genesis, activism continues to haunt us”. Amaral collected testimonies to bring to the table profound reflections on the current concept.

Manoel Gonçalves Ferreira Filho, Doctor Honoris Causa from the University of Lisbon, Doctor in Constitutional Law and Political Institutions from the University Paris 1 — Panthéon — Sorbonne and Professor Emeritus of Constitutional Law at the University of São Paulo (USP), then proposed a preliminary analysis of the relationship between the judicialization of politics and the phenomenon of judicial activism. “The judicialization of politics, which is in line with the Constitution, is one thing; judicial activism is another thing, which is a violation of constitutional principles and the rule of law.” For him, the term activist, initially critical, now takes on the meaning of militancy for a cause and militancy based on pretext and variable doctrines. “The activist puts his opinion above the law, either in a veiled way through interpretations that deny the meaning of the text, its history, or the common understanding, or in a frontal way, creating norms that the Constitution or the law did not provide for. It is, in my opinion, a matter of discretion”.

For Carlos Blanco de Morais, Doctor of Law from the University of Lisbon and Full Professor at the FDUL, activism has been defined as a deviation from the exercise of the judicial function, exceeding constitutional limits and involving an incursion by the courts through their decisions into the core of the functions proper to the Executive and Legislative branches. He uses the concept of “liquid”, Zygmunt Bauman's thesis, in his reasoning about the subject and what he considers to be “liquid constitutions and their informal mutations.” The idea of liquefying constitutional normativity would be, in his opinion, curiously, one of the sensitive problems of the rule of law, from the 1990s to the present. The expression liquid constitution, for him, must be understood in the light of recent transformations in the civil and political society of the democratic states of the Euro-American universe, in the context of a modernity that some sociologists have called “liquid modernity”.

By contrast, the “solid universe” of the 20th century would have started to melt in the early 21st century for a number of reasons. The dissolution of traditional loyalties — rights, customary obligations and family structures in favor of an individualist modernity and the empire of the economy; loss of the territorial dimension of power, of national references, catalyzed by migratory globalization. A multiplication of authorities increasingly emptied of real power. Dissolution of legal norms in a growing lack of clarity, which generates uncertainty, casuism, evolution to loose legal systems and the absence of compliance with objectively identifiable precepts. In this situation, constitutional provisions tend to lose their nature as a right decided by a constituent legislator empowered by popular vote to assume content that is different and even contrary to the original precepts — generating contradictory and not duly substantiated judicial decisions, clearly undermining legal certainty, one of the pillars of the rule of law and a guarantee for citizens.

Elival da Silva Ramos, Doctor of Law and Professor at the University of São Paulo (USP), closed the panel, evaluating that judicial activism is more present in developing countries, such as Brazil, Colombia, and South Africa. “What we found is that people, political agents try to solve everything at the same time, without planning, without systematization, without organizing themselves for this, as if it were a building that is on fire and everyone wants to go out looking for a fire extinguisher, stairs, etc., and everyone burns to death.” He says that Brazil is experiencing this situation, which permeates institutions, which also try to solve all issues simultaneously, which ends up producing institutional shocks. And he summarizes it by saying that activism is simply a chapter of this great soap opera, being a dysfunction: “It is something contrary to what the constitution authorizes”.

The Professor reinforced the difference between judicialization and judicial activism. The first refers to judicial interventions caused by various factors and even by the constitution itself. The second would be the distortion of what the constitution establishes. And he pointed out three ways to face judicial activism: 1) authentic political reform, improving the party electoral system; 2) at the academic level, relentlessly combating neoconstitucialism and, 3) combating evil itself with evil. “The most effective way to combat activism would be to change the composition of the Supreme Federal Court, with a different composition, with people with different perspectives, with varied indications.”

Check out the full panel Activism in Constitutional Justice at the 7th Lisbon Legal Forum:

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