Between Différance and Intersubjectivity: The Concept of Limited Rationality in the Realm of Constitutional Adjudication

Abstract

If the concept of limited rationality revealed the complexity of constitutional democracy, for there is no possibility of completely recollecting and gathering the history and its tensions nor is it possible to entirely do justice to the other, when it is transported to constitutional adjudication, the same reasoning applies. In this specific realm, it demonstrates that a judge aware of the boundaries of reason focuses: first, on the singularity of the case, not in predetermined formulas and patterns; second, on the system of rights, keeping it coherent throughout history; and third, on the other, as the quest for doing justice to the case, in all the complexities of the resolution as a non-resolution of the dialogue between symmetrical and asymmetrical justice. As a means to demonstrate how the concept of limited rationality applies to the reality, the reconstruction of German and Brazilian constitutionalisms, as previously examined, appears as a relevant sign, but it is the reexamination of constitutional cases that brings it to the effective practice of decision-making. In this regard, by showing how a judge aware of the limits of reason would judge the Crucifix, Cannabis and Ellwanger cases introduced in the first chapter, the concept of limited rationality shows that it is necessary to think of reason in constitutional adjudication in a different perspective, one that knows that adjudication has limits, and that these limits are constructed in the very practices of this dualism between law and justice, between history and the other’s otherness.