Transition bonds between law and politics: the additive rulings in Federal Supreme Court recent experience

Abstract

The Federal Supreme Court proves, in recent years, through the use of a deliberating technique known as additive, to have a typically regulatory competence. However, the creation of a new law by the Federal Supreme Court should honor to the full extent the scope of competence of the legislator, making the constitutionality control an effective means of institutional dialogue, whose quality depends to a great extent on the correction of decision-making techniques used, especially of additive rulings, a field in which the possibility of competition in the exercise of regulatory function has the potential to improve the conditions for the execution of democracy and effectiveness of fundamental rights. The regulatory activity performed by the Judiciary should not be construed as a prohibition of the competence of the National Congress to regulate, at any time - and even in a different way – the regulatory sector that suffered from legislative failure. The purpose of the constitutional Court when exercising such regulatory competence is to start an explicit dialogue with the Executive and Legislative branches about the regulation of fundamental rights. This study aims to support a proposal of legitimation of moderate use of the regulatory judicial function by the Federal Supreme Court as a way to improve the institutional dialogue with Parliament, in order to promote, through the issue of additive rulings, a real institutional dialogue, not abstractly or rhetorically, but rather, by addressing effective measures to re-establish the constitutional rules violated.