Democracia, poder majoritário e contramajoritário: o debate teórico sobre a revisão judicial

Abstract

Democracy in the modern world means legitimacy for government coercion over individuals. The advent of fundamental rights and judicial supremacy put a brake into the majority impulse. Critics argue that allowing judicial supremacy overlap the popular will, it is denying to the people their self-determination, and consequently, denying democracy either. This research has as its context in the Proposed Constitutional Amendment nº 33 - PEC 33 which refer to the theorical debate between judicial review and political legitimacy in a democracy. This work aims to analyze majoritarian, deliberative and constitutional theories of democracy in order to justify the role of judicial review on the last word about the fundamental right's protection. This study argues that political legitimacy before coming from public will of selfdetermination goes through the best defense of fundamental rights and human dignity of individuals, so on, consequently when judicial review protect rights over the collective will instead of affronting democracy, end up showing the best concept of what democracy should be.