Constitutional Interpretation: relation between Law and Politics in the Constitutional Jurisdiction

Abstract

This research aims the analysis of the delicate relation between law and politics, which was significantly changed and received a special attention with German Basic Law (1949), Italy Constitution (1948), and also Spain (1972), Portugal (1976) and later Brazilian Constitution (1988). They enlarged constitutional texts, embodying social and economic rights which configured constitutional interventionism. This led to an increase of lawsuits related to social rights, due to an improvement of the access to justice, altering the relation between politics and law, reducing legislators´ discretion and enhancing constitutional jurisdiction. Thus, issues that once were solved in the scope of major politics matters were able to be solved by judicial intervention, by mechanism of judicial review. This transformation occurred in the Rule of Law, which must be linked to the idea of the Constitution as a driving force and its legal force (Hesse). This way, there´s an effort to demonstrate that the issue of the limits concerning law and politics is due to the hermeneutic problems of Constitutional interpretation, and that many theoretical and methodological opinions of authors will result in different shapes for the problem. Keywords: Constitutional Law, Philosophical Hermeneutics, Law and Politics