Neoconstitutionalism: the role the judge should play in democracy
Making rights effective requires a judge who is aware of his social role, has technical knowledge, but is above all human
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Constitutionalism was for humanity a phenomenon of the slow consolidation of fundamental rights and guarantees. The impact of the horrors of the Second World War, when horrendous acts such as the Nazi holocaust were legitimized by the legislation of the German state, was a warning to humanity that science alone could never move away from ethical values, and so law, too, as a branch of science, as a legal science, could never have believed in the power of formulas, of the application of cold law, decontextualized from the practical case, that legal science could never have believed that one day...
Constitutionalism was for humanity a phenomenon of the slow consolidation of fundamental rights and guarantees. The impact of the horrors of the Second World War, when horrendous acts such as the Nazi holocaust were legitimized by the legislation of the German state, was a warning to humanity that science alone could never move away from ethical values, and so law, too, as a branch of science, as a legal science, could never have believed in the power of formulas, of the application of cold law, decontextualized from the practical case, that legal science could never have believed that one day the Judiciary could fulfill the function of being just Montesquieu's "Mouth of the Law". In this sense, Neoconstitutionalism represented the rapprochement of Legal Science with moral and ethical principles and the, shall we say, super principle born of the 1948 Universal Declaration of Human Rights, the Principle of the Dignity of the Human Person. It is now, more than ever, up to the judgeto responsibly assume his role of making fundamental rights and guarantees effective, effusively refusing to be the main piece on the board of neoliberalism.
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