Constitutional Facts?

Beschreibung

This book explores how both common law and civil law traditions have long devoted extensive attention to litigious facts—those directly related to the parties involved in a dispute. These facts have consistently been central to procedural theories, particularly the theory of evidence. At the same time, it draws attention to another category of facts that remain largely unexamined by judges and lawyers. Especially in the context of constitutional review and binding precedents, there are facts that do not concern the litigants—or at least not exclusively. These are general facts, connected to social life and the functioning of the world, and they closely resemble legislative facts. Since law presupposes reality and social needs—facts that concern everyone—their presence in constitutional adjudication should not come as a surprise. The volume introduces the concept of constitutional facts, which emerge when constitutional review moves beyond its normative roots and engages with the lived reality of society. Deciding based on constitutional facts carries a significant democratic dimension. While the analysis acknowledges that constitutional decisions should remain open to institutional dialog, it also argues that deliberation should not be prematurely closed when constitutional facts—overlooked by the legislature or still under public debate—are brought before the judiciary through legal challenges. Beyond theory, the work also addresses decision-making strategies that foster institutional dialog around these facts, offering a framework that supports more transparent and participatory constitutional adjudication.

This book explores how both common law and civil law traditions have long devoted extensive attention to litigious facts—those directly related to the parties involved in a dispute. These facts have consistently been central to procedural theories, particularly the theory of evidence.

At the same time, it draws attention to another category of facts that remain largely unexamined by judges and lawyers. Especially in the context of constitutional review and binding precedents, there are facts that do not concern the litigants—or at least not exclusively. These are general facts, connected to social life and the functioning of the world, and they closely resemble legislative facts. Since law presupposes reality and social needs—facts that concern everyone—their presence in constitutional adjudication should not come as a surprise.

The volume introduces the concept of constitutional facts, which emerge when constitutional review moves beyond its normative roots and engages with the lived reality of society. Deciding based on constitutional facts carries a significant democratic dimension.

While the analysis acknowledges that constitutional decisions should remain open to institutional dialog, it also argues that deliberation should not be prematurely closed when constitutional facts—overlooked by the legislature or still under public debate—are brought before the judiciary through legal challenges.

Beyond theory, the work also addresses decision-making strategies that foster institutional dialog around these facts, offering a framework that supports more transparent and participatory constitutional adjudication.

Autor*in

Luiz Guilherme Marinoni

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Constitutional Facts Deliberation Constitutional Decisions Proportionality Scientific Facts Moral Disagreements

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