Overview

This book explores how both common law and civil law traditions have long devoted extensive attention to litigious facts—those directly related to the parties involved in a dispute. These facts have consistently been central to procedural theories, particularly the theory of evidence. At the same time, it draws attention to another category of facts that remain largely unexamined by judges and lawyers. Especially in the context of constitutional review and binding precedents, there are facts that do not concern the litigants—or at least not exclusively. These are general facts, connected to social life and the functioning of the world, and they closely resemble legislative facts. Since law presupposes reality and social needs—facts that concern everyone—their presence in constitutional adjudication should not come as a surprise. The volume introduces the concept of constitutional facts, which emerge when constitutional review moves beyond its normative roots and engages with the lived reality of society. Deciding based on constitutional facts carries a significant democratic dimension. While the analysis acknowledges that constitutional decisions should remain open to institutional dialog, it also argues that deliberation should not be prematurely closed when constitutional facts—overlooked by the legislature or still under public debate—are brought before the judiciary through legal challenges. Beyond theory, the work also addresses decision-making strategies that foster institutional dialog around these facts, offering a framework that supports more transparent and participatory constitutional adjudication.

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9783032196637

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Luiz Guilherme Marinoni holds a Master’s and Doctorate in Law from the Catholic University of São Paulo, with postdoctoral studies at the Università di Milano. He has been a Visiting Scholar at Columbia University and Fordham University. An Honorary Member of the Presidium of the International Association of Procedural Law, he also serves as President of the Brazilian Association of Constitutional Procedural Law. Marinoni is a Professor at the Federal University of Paraná, a former Federal Prosecutor, and a former President of the Brazilian Bar Association, Curitiba. He has worked as a consultant for the Brazilian House of Representatives on the drafting of the Brazilian Civil Procedural Code and the Brazilian Constitutional Procedural Code, and as an international consultant for the “Principles of Transnational Civil Procedure” project (American Law Institute and UNIDROIT). He is the author of numerous books published in Brazil, Chile, Colombia, Italy, Mexico, Peru, Portugal, and Spain, as well as articles in leading legal journals across Latin America, Europe, and Asia. His work has earned him the prestigious Jabuti Prize in 2009 and 2017, and finalist recognition in 2007, 2010, and 2015.

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