Jurisdição constitucional em Espanha (1981-1992) e Brasil (1988-1997)

Abstract

This dissertation presents a method for a descriptive analysis of judicial review. This method works as a tool that allows researchers to expand the studies on comparative judicial behavior. It particularly focuses on the analysis (a) of the specific historical circumstances in which judicial review is practiced; (b) of the political meaning of the discourses these judicial review practices produce; and (c) of the judicial dissent and consensus that constitute these practices. I applied these methodological procedures to two sets of judgments: (a) the votes on “Recursos de Inconstitucionalidad” filed before the “Tribunal Constitucional de España”, between 1981 and 1992, and (b) the votes on Ações Diretas de Inconstitucionalidade filed before the Brazilian Supremo Tribunal Federal, between 1988 and 1997. The results from the application of the method indicate two broad conclusions. On the one hand, it is possible to distinguish, in the behavior of constitutional judges, divergences consistently associated to the political nature of their nominations. On the other hand, the political nature of their nomination and of their divergences do not necessarily bind the behavior of the constitutional judges to the defense of the political actors who nominated them.