revista unb

1. ARTICLES // ARTIGOS
GÜNTHER TEUBNER, MARCUS FARO DE CASTRO,
RITA LAURA SEGATO, HAUKE BRUNKHORST, ANA LUIZA
PINHEIRO FLAUZINA, RICARDO JACOBSEN GLOECKNER
e DAVID LEAL DA SILVA, JOÃO COSTA NETO
REVIEW ESSAYS // ARTIGOS-RESENHA
ALEXANDRE ARAÚJO COSTA
CASE NOTES AND COMMENTARIES // COMENTÁRIOS
DE JURISPRUDÊNCIA
LUÍS ROBERTO BARROSO, LEONARDO MARTINS,
LENIO LUIZ STRECK
BOOK REVIEWS // RESENHAS
GILBERTO GUERRA PEDROSA, CARINA CALABRIA,
GABRIEL REZENDE DE SOUZA PINTO
University of Brasília Law Journal
Revista de Direito da Universidade de Brasília
V. 01, I. 01
january – june 2014

2. University of Brasília Law Journal
Revista de Direito da Universidade de Brasília
Journal of the Graduate Program in Law of
the University of Brasilia
january – june, 2014, volume 1, issue 1
Editorial Board
Editor-in-Chief
Marcelo Neves Universidade de Brasília, Brazil
Editors
Alexandre Veronese Universidade de Brasília, Brazil
George Rodrigo Bandeira Galindo Universidade de Brasília, Brazil
Juliano Zaiden Benvindo Universidade de Brasília, Brazil
Associate Editors
Ana Lúcia Sabadell Universidade Federal do Rio de Janeiro, Brazil
Ángel Oquendo University of Connecticut, Estados Unidos
Emilios Christodoulidis University of Glasgow, Scotland
José Octávio Serra Van-Dúnem Universidade Agostinho Neto, Angola
Leonel Severo Rocha Universidade do Vale do Rio dos Sinos, Brazil
Masayuski Murayama Meiji University, Japan
René Fernando Urueña Hernandez Universidad de Los Andes, Colombia
Miguel Nogueira de Brito University of Lisbon, Portugal
Nelson Juliano Cardoso Matos Universidade Federal do Piauí, Brazil
Paulo Weyl Universidade Federal do Pará, Brazil
Thomas Vesting Johann Wolfgang Goethe University, Germany
Virgílio Afonso da Silva Universidade de São Paulo, Brazil
Executive Secretary
Carina Calabria
Executive Aides
Gabriel Rezende de Souza Pinto; José Nunes de Cerqueira Neto;
Matheus Barra de Souza
Text Reviewers
Ana Luiza Almeida e Silva, Bethânia I. A. Arifa,
Camilla de Magalhães, Carolina Lemos, Clarice Calixto,
Douglas Zaidan, Fabrício Noronha, Gilberto Guerra Pedrosa,
Guilherme Del Negro, Hector L. C. Vieira, Kelton de Oliveira Gomes,
Luciana Silva Garcia, Maria Celina Gordilho, Paulo Soares Sampaio,
Nara Vilas Boas Bueno e Tédney Moreira
GRAPHIC DESIGN
André Maya Monteiro
Esteban Pinilla

3. University of Brasília Law Journal
Revista de Direito da Universidade de Brasília
V. 01, I. 01
january – june 2014

4. EDITORIAL // NOTA EDITORIAL
Articles // ARTIGOS
THE LAW BEFORE ITS LAW: FRANZ KAFKA ON THE (IM)POSSIBILITY
OF LAW’S SELF REFLECTION
// O DIREITO DIANTE DE SUA LEI: SOBRE A (IM)POSSIBILIDADE DE AUTORREFLEXÃO
COLETIVA DA MODERNIDADE JURÍDICA
Günther Teubner
NEW LEGAL APPROACHES TO POLICY REFORM IN BRAZIL
// NOVAS PERSPECTIVAS JURÍDICAS SOBRE
A REFORMA DE POLÍTICAS PÚBLICAS NO BRASIL
Marcus Faro de Castro
MAY EVERY PEOPLE WEAVE THE THREADS OF THEIR OWN HISTORY: JURIDICAL
PLURALISM IN DIDACTICAL DIALOGUE WITH LEGISLATORS
// QUE CADA POVO TEÇA OS FIOS DA SUA HISTÓRIA: O PLURALISMO JURÍDICO EM
DIÁLOGO DIDÁTICO COM LEGISLADORES
Rita Laura Segato
THE BEHEADING OF THE LEGISLATOR: THE EUROPEAN CRISIS – PARADOXES OF
CONSTITUTIONALIZING DEMOCRATIC CAPITALISM
// A DECAPITAÇÃO DO LEGISLADOR: A CRISE EUROPEIA – PARADOXOS DA
CONSTITUCIONALIZAÇÃO DO CAPITALISMO DEMOCRÁTICO
Hauke Brunkhorst
THE RACIAL BOUNDARIES OF GENOCIDE
// AS FRONTEIRAS RACIAIS DO GENOCÍDIO
Ana Luiza Pinheiro Flauzina
CRIMINAL COMPLIANCE, CONTROL AND ACTUARIAL LOGIC:
THE RELATIVIZATION OF THE NEMO TENETUR SE DETEGERE
// CRIMINAL COMPLIANCE, CONTROLE E LÓGICA ATUARIAL:
A RELATIVIZAÇÃO DO NEMO TENETUR SE DETEGERE
Ricardo Jacobsen Gloeckner e David Leal da Silva
HUMAN DIGNITY, SOCIAL SECURITY AND MINIMUM LIVING WAGE: THE
DECISION OF THE BUNDESVERFASSUNGSGERICHT THAT DECLARED THE
UNCONSTITUTIONALITY OF THE BENEFIT AMOUNT PAID TO ASYLUM SEEKERS
// DIGNIDADE HUMANA, ASSISTÊNCIA SOCIAL E MÍNIMO EXISTENCIAL: A DECISÃO
DO BUNDESVERFASSUNGSGERICHT QUE DECLAROU A INCONSTITUCIONALIDADE DO
VALOR DO BENEFÍCIO PAGO AOS ESTRANGEIROS ASPIRANTES A ASILO
João Costa Neto
11–30
31–61
62–88
89–112
113–139
140–163
164–188
06–09
10–188

5. Review Essays // ARTIGOS-RESENHA
MORAL THEOLOGY FOR HEDGEHOGS:
RONALD DWORKIN’S THEORY OF JUSTICE
// TEOLOGIA MORAL PARA OURIÇOS:
A TEORIA DA JUSTIÇA DE RONALD DWORKIN
Alexandre Araújo Costa
Case Notes & Commentaries // COMENTÁRIOS DE JURISPRUDÊNCIA
SAME-SEX UNIONS: LEGAL RECOGNITION
OF COMMON LAW UNIONS BETWEEN SAME-SEX PARTNERS
// UNIÕES HOMOAFETIVAS: RECONHECIMENTO JURÍDICO
DAS UNIÕES ESTÁVEIS ENTRE PARCEIROS DO MESMO SEXO
Luís Roberto Barroso
THE RECOGNITION OF STABLE CIVIL UNIONS BETWEEN SAME SEX PARTNERS AS
A FUNDAMENTAL RIGHT BY CONSTITUTIONAL JUSTICE
// RECONHECIMENTO DA UNIÃO ESTÁVEL HOMOAFETIVA COMO DIREITO
FUNDAMENTAL PELA JUSTIÇA CONSTITUCIONAL
Leonardo Martins
THE CASE ADPF 132: IS DEFENDING THE CONSTITUTIONAL TEXT
A POSITIVIST (OR ORIGINALIST) ATTITUDE?
// O CASO DA ADPF 132: DEFENDER O TEXTO DA CONSTITUIÇÃO
É UMA ATITUDE POSITIVISTA (OU “ORIGINALISTA”)?
Lenio Luiz Streck
Book Reviews // RESENHAS
[THE DIGNITY OF THE HUMAN BEING IN CONTEMPORARY CONSTITUTIONAL LAW:
THE CONSTRUCTION OF A LEGAL CONCEPT UNDER THE LIGHT OF THE WORLD’S
case law]
// A DIGNIDADE DA PESSOA HUMANA NO DIREITO CONSTITUCIONAL
CONTEMPORÂNEO: A CONSTRUÇÃO DE UM CONCEITO JURÍDICO À LUZ DA
JURISPRUDÊNCIA MUNDIAL
Gilberto Guerra Pedrosa
[LEGAL ABSTRACTIONS AND SOCIAL CHANGE: INTERACTIONS BETWEEN THE
LAW, PHILOSOPHY, POLITICS AND THE ECONOMY]
// FORMAS JURÍDICAS E MUDANÇA SOCIAL: INTERAÇÕES ENTRE O DIREITO,
A FILOSOFIA, A POLÍTICA E A ECONOMI
Carina Calabria
ON THE LIMITS OF CONSTITUTIONAL ADJUDICATION:
DECONSTRUCTING BALANCING AND JUDICIAL ACTIVISM
// [OS LIMITES DA JURISDIÇÃO CONSTITUCIONAL: DESCONSTRUINDO O
BALANCEAMENTO E O ATIVISMO JUDICIAL]
Gabriel Rezende de Souza Pinto
211–234
235–269
270–293
295–300
301–306
307–312
190–209
189–209
210–293
294–312

6. Direito.UnB, january – june, 2014, v. 01, i.01 307
BENVINDO, JULIANO ZAIDEN (2010). ON THE
LIMITS OF CONSTITUTIONAL ADJUDICATION:
DECONSTRUCTING BALANCING AND JUDICIAL
ACTIVISM. HEIDELBERG: SPRINGER.
// BENVINDO, JULIANO ZAIDEN (2010). [OS
LIMITES DA JURISDIÇÃO CONSTITUCIONAL:
DESCONSTRUINDO O BALANCEAMENTO E O
ATIVISMO JUDICIAL]. HEIDELBERG: SPRINGER.
Gabriel Rezende de Souza Pinto

7. Direito.UnB, january – june, 2014, v. 01, i.01 308
ABOUT THE AUTHOR // SOBRE O AUTOR
PhD Candidate in Law at Universidade de Brasília. // Doutorando em
Direito pela Universidade de Brasília.
>>
Benvindo, Juliano (2010). On the Limits of constitutional adjudication [...], p. 307 – 312

8. Direito.UnB, january – june, 2014, v. 01, i.01 309
It’s common that book reviews are opened with a kind of compliment
that highlights the importance of a certain work to the field of study
where it belongs. This is not exactly what one can say about On the limits
of constitutional adjudication: deconstructing balancing and judicial activ-
ism, by Juliano Zaiden Benvindo. Not without a complication; not with-
out the notion of field having already been complicated for at least two
reasons. Firstly, although the book, which is a result of the doctoral thesis
defended both at Universidade de Brasília and at Humboldt University,
Berlin, announces itself as a study of constitutional law, it becomes most
promptly clear to the reader that those limits are dissolved before the
naturalness and consistency of Benvindo’s journey through some of the
most complex philosophical debates of the second half of the 20th
century.
Notably on what is organized around the names of Jacques Derrida and
Jürgen Habermas. Secondly, the idea of field is harmed because the entire
proposal of the work is nothing more than a strong critique to the hege-
monic movement that informs contemporary constitutional law – both
Brazilian and German versions. Therefore, Benvindo’s work does not
derive its importance from a so-called importance to the filed, but instead
from how it challenges the strength of that common sense, taking part
on its deconstruction.
If the object of the investigation is already displayed on the subti-
tle, that is, a certain objection to balancing (values, principles, maybe
values-principles) and to judicial activism, it becomes thinkable through
a certain course, a path where one sees the concept of limited rationali-
ty coming. Trail and treading in which the becoming of balancing and of
judicial activism unfolds as one thing only; one same movement combin-
ing intention to rationality and centralization of major political deci-
sions on constitutional courts. One circulates, somehow, around what
Jean de la Fontaine would say on the fable The wolf and the lamb: “the
reason of the strongest is always the best”. Benvindo will demonstrate it,
“subsequently”, on the threefold division of the book.
In the first chapter it is discussed the presence of the principle of
proportionality as a dominant method of adjudication and, on its inside,
balancing, logical finishing line of this historical proceeding. Three
cases are underlined to this matter: the Crucifix case, the Cannabis case
and the Ellwanger case. Having this last one been ruled by the Brazilian
Supreme Court (STF) and the two others by the German Federal Consti-
tutional Tribunal (BVG), the outlines of hegemony that crosses both
juridical cultures investigated by Benvindo are established: balancing as
definitive entrance of values in the form-of-law. Dissolving the boundar-
ies of this form, the balancing designs the transposition of the political
reasoning of reaching common good to the typical space of constitution-
al courts activities.
This is exactly what Benvindo intends to oppose. The two chapters that
follow analyze historically the emergence of the principles of propor-
tionality and balancing to the condition of constitutional meta-prin-
ciples. This movement introduces a clear guidance: the change in BVG
and STF auto-comprehension towards a model of judicial activism. The
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9. Direito.UnB, january – june, 2014, v. 01, i.01 310
constitutional tribunals would then franchise the conversion of funda-
mental rights as subjective rights to their conception in terms of objective
principles of a total legal order. Under such terms, the subjective right no
longer functions as trump against the will of political majorities, being
put in relation to the order of values that the principles would shape. The
totality of the legal order is now the totality of the objective principles
and every political question may be handled as a question of optimizing
fundamental rights. If principles are indeed maxims, the constitution-
al courts may now describe themselves as the lawful path to the enforce-
ment of values.
Benvindo supports the interesting thesis that, both in Brazil and in
Germany, the change towards judicial activism was related to the need
to respond to antidemocratic legacies. Saying “never more” to Nazism
and to the military dictatorship involved, beforehand, distrusting legis-
lative institutions and the executive power, considered responsible for
the devastating authoritarian practices or, at least, incapable of standing
against them. One foresaw the indispensability of a strong power that
would endure the task of defending the values of constitutional democ-
racy and enforcing fundamental rights. Autoimmunity: that which is
built to protect democracy risks destroying it. Balancing becomes hege-
monic in this context because it is capable of opening two different paths
of legitimation: on one hand, it allowed treating rights as if they were
values, widening the scope and nature of judicial activity in accomplish-
ing its new task – even if this meant disregarding the traditional limits of
the notion of division of powers; on the other hand, it allowed justifying
judicial activism by granting it an aura of rationality. Through innumer-
ous examples and a wide historical reconstruction of the role of BVG and
STF in emerging German and Brazilian democracies, Benvindo demon-
strates how balancing accompanies the rising centrality of constitution-
al courts erasing the borders between law and justice at the exact same
time it emphasizes the rationality of its methodology.
The second part of the book is dedicated to the debate about the ratio-
nality of balancing. After all, what is weird about its emergence to the
condition of guardian of the place of jurisdictional rationality? The forth
chapter elects Robert Alexy’s theoretical model as locus to the discus-
sion and seeks to highlight the features of its main axioms. On the well-
known special case thesis, developed on Theory of Legal Argumentation,
it is already seen the problematic dissolution of the limits of law on a
discourse in which the objectives of a given community may prevail over
constitutional guarantees. On his Theory of Fundamental Rights, Alexy
translates this logic into a method that would supposedly control the
risks of irrationality on normative collisions. The principle of propor-
tionality and, on its inside, balancing constitute a rational methodology
to times of judicial activism.
Chapters 5 and 6 will attack these premises. Benvindo adopts a strate-
gy somehow heterodox and, for this reason, really courageous: to oppose
balancing by using a concept of limited rationality created through the
productive tension between Jacques Derrida’s différance and Jürgen
Benvindo, Juliano (2010). On the Limits of constitutional adjudication [...], p. 307 – 312

10. Direito.UnB, january – june, 2014, v. 01, i.01 311
Habermas’ proceduralism. As if replicating the former’s reply to the invi-
tation to a discussion proposed by the latter in 1999 – “it’s time, we hope it’s
not too late” –, Benvindo makes the two philosophers dialogue before his
need to confront and face balancing. With Derrida, he drafts a thought of
justice that makes justice to the other. Law is, therefore, assimilated into
the double bind, into the aporia between constitutionalism and democ-
racy. Understanding that the law is properly de-constructible and that
justice is the de-construction means realizing the indispensability of
both and the fact that a decision worthy of the name is always the one
that resides on undecidability– to be infinitely distinguished from inde-
cision – on differentiation and on differing the presence of its content, on
its irreducibility to any set of rules. This dynamic of infinite negotiations
is poorly adjusted to a methodological ruling that intends to be rational
precisely in controlling the différance. There is something extremely logo-
centric in balancing.
With Habermas, Benvindo searches a kind of therapy to the problem
of law’s indetermination and, therefore, of adjudication in the context of
post-conventional societies. One may, then, develop a critique to balanc-
ing through the emphasis on proceedings oriented to mutual under-
standing. The Habermasian idea of intersubjectivity and its consequenc-
es to the motivation of a judicial activity that does not resort to previous
methodologies sustain his critique. Benvindo is not limited to pointing
out, from this critique, how balancing includes valorative elements in
adjudication or how its criterion of discretionarity reduces rights of the
minority, but he also disapproves the supposed heuristic capacity of its
method of controlling knowledge.
The concept of limited rationality, finally discussed in depth on the
third and last part of the work, tries to account for a possible dialogue
between différance and intersubjectivity and, ergo, between a symmet-
ric justice and another asymmetric. The thesis supported is that, as hard
and improbable as this approximation may be, there is a game of comple-
mentarity and compatibility between them. If any translation is at the
same time possible and impossible, then one has to turn the reflection to
a resolution without resolution: the productive tension upon its horizon
of (un)translatability. Benvindo bets on a kind of approximation between
Derrida and Habermas’ philosophizing about more concrete institution-
al matters, such as adjudication. The limited rationality does not only put
itself on this place, but makes room for these issues to irrupt on a dynam-
ic of searching for justice. The last chapter operates a return to the three
judicial cases studied at the beginning of the work in order to reconsid-
er them in light of this rationality that recognizes itself as limited. Three
axioms on its approach are noticeable: a) focus on the singularity of the
concrete case beyond the simplifying previous formula; b) reconstruc-
tion of institutional history to maintaining the consistency of the system
of rights; c) a adjudication that asserts the otherness of the other.
This is how Benvindo proposes as an alternative to balancing a
renewed connection between “the empirical world” and a limited reason.
On the limit, a matter of limits. In this manner, rationality also invites to
Benvindo, Juliano (2010). On the Limits of constitutional adjudication [...], p. 307 – 312

11. Direito.UnB, january – june, 2014, v. 01, i.01 312
think the porosity of its limitation, what crosses it, what undoes the pure
boundaries. Whatever the answer may be, before the limen, it’s necessary
to read On the limits of constitutional adjudication.
Benvindo, Juliano (2010). On the Limits of constitutional adjudication [...], p. 307 – 312

12. Direito.UnB. Revista de Direito da Universidade de Brasília.
Programa de Pós-Graduação em Direito – Vol.1, N.1 (jan./jul 2014) –
Brasília, DF: Universidade de Brasília, Faculdade de Direito.
Semestral. 2014.
ISSN 2357-8009 (versão on-line)
ISSN 2318-9908 (versão impressa)
Bilíngue (Português/Inglês)
1. Direito – periódicos. I. Universidade de Brasília,
Faculdade de Direito.
CDU 340