OBJECTIONS OF DEMOCRATIC PROCEDURAL LAW TO JUDICIAL MINIMALISM: A CRITICAL STUDY IN THE LIGHT OF THE NEOINSTITUTIONALIST PROCEDURAL THEORY

Abstract

This paper asks, as a research problem, the democratic compatibility of Cass Sunstein’s judicial minimalism in the light of the neoinstitutionalist procedural theory, developed by Rosemiro Pereira Leal based on a Popperian solid matrix, and adopted as the main theoretical framework for the objections to Sunstein’s conception in this writing. Thus, the general article’s objective is to oppose the main basis of judicial minimalism with the democratic procedural advocated by the neoinstitutionalist procedural theory. As a hypothesis, it is affirmed that the existing antagonism between, on the one hand, the foundations of Sunstein’s judicial minimalism and, on the other, the criticism of the jurisdiction's centrality in the process, allied to the defense of isomenical hermeneutics, both of the neoinstitutionalist procedural theory, emphasizes that the minimalism – at least in the Sunsteinian model – lacks democratic legitimacy. As result, the paper demonstrates that Sunstein’s judicial minimalism rejects the dialogical and testifying purposes of neoinstitutionalist theory, emphasizing the jurisdiction's centrality in the process, also opposing the idea of process as an institutionalizing means of the legal system. The research takes place in the hermeneutic model, and its predominant reasoning is dialectical and hypothetical-deductive. It has an interdisciplinary perspective, as it combines Philosophy, Theory of Law, Hermeneutics, and Procedural Law, having been developed through national and foreign bibliographic research, having as secondary sources the principal works of Cass Sunstein and Rosemiro Pereira Leal related to the theme.