A critique of Ferrajoli's Garantismo: limitations and possibilities

• Bedê Freire Júnior, Américo ^[1]
  1. [1] Faculdade de Direito de Vitória
• Localización: Direito e Linguagem, ISSN-e 3020-898X, Vol. 1, Nº. 1, 2024, págs. 5-56
• Idioma: inglés
• Enlaces
  • Texto completo
• Resumen

  • Garantismo works to establish limits and links to public and private powers (poteri selvaggi, in Ferrajoli’s own language), based on the postulates of legality, deontic completeness, jurisdictionality and actionnability. There are several misinterpretations regarding the scope of the term Garantismo. This article discusses two crucial questions: what does the expression truth mean for Garantismo? Does the word Garantismo only means the fundamental rights of defendants in criminal proceedings, or does it also encompass the rights of crime victims and the society? The idea of truth in the process is always probabilistic in factual terms and opinion based in legal terms, but truth is a condition of legitimacy of any judicial decision. The claim of logical universality of Garantismo requires the protection of victims. Violations of rights must provoke state action and primary and secondary guarantees must function as a form of effective protection. Garantismo must mean the protection of the rights of both defendants and victims. The theory of Garantismo is not the solution to all the dilemmas of the human condition, but, heir of the enlightenment, it seeks to establish an axiomatic theory able to regulate any legal system. Finally, this article recognizes the limitation of Garantismo in the struggle to protect democracy.