Democracy and transconstitutionalism: the “right to oblivion”, extraterritoriality and the conflict between juridical orders

• Autor(a) principal: Acunha, Fernando José Gonçalves
• Data de Publicação: 2016
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Direito GV
• Texto Completo: https://periodicos.fgv.br/revdireitogv/article/view/66589
• topic: Transconstitutionalism; Democracy; Fundamental rights; Right to oblivion; Free speech; Transconstitucionalismo; Democracia; Direitos fundamentais; Direito ao esquecimento; Liberdade de expressão

The State and its territory are fundamental institutions of modern Law. Nevertheless, these elements aren’t as important as they have been, and this transformation has allowed that conflicts of fundamental rights start affecting distinct legal orders (international, transnational and national) simultaneously. Issues like the democratic legitimization of Law, its spatial efficacy and the compatibility of legal orders have become a core piece of legal studies. This article intends to explore some legal operational problems through the examination of decisions whose subject is the “right to oblivion” as it has been affirmed by Courts in Europe and in Brazil. For that reason, it analyzes how these legal orders and their Courts have been defining the depth and the scope of this “right” and also the way in which they have settled the spatial efficacy of their rulings. Its aim is to address the problematic dialogue between legal orders and the concerns raised by the replacement of the legitimacy of Law, progressively detached from democracy in order to become more related to the rationality of juridical norms. In conclusion, the paper defends democracy as an unreplaceable basis for Law, though it doesn’t propose a return to classical Modernity standards.