The rhetoric of the courts and the legitimacy of the constitutional jurisdiction: Brazil and Germany in a comparative perspective

Abstract

This paper deals with the discourses through which constitutional courts strategically insert themselves in the debate about the legitimacy of their own jurisdiction. It takes the assumption that the political tension between courts and parliaments is a feature of legal systems that have rigid constitutions and judicial review made by an unelected organ. Using a model called Empirical-Rhetoric Analysis of Discourse, it seeks to trace the profiles of this action in an important decision of the Brazilian Federal Supreme Court and another of the German Federal Constitutional Court. The conclusions show that both courts use rhetorical discourses in defense of their own legitimacy, even though ethos strategies predominate in the Brazilian Federal Supreme Court and logos strategies prevail in the German Federal Constitutional Court. In the end, the work tries to understand the reasons for this difference, pointing to the need for new research on the subject.