THE SEPARATION OF POWERS AS A FOUNDATION FOR THE REALIZATION OF FUNDAMENTAL RIGHTS IN A DEMOCRATIC STATE OF LAW: FROM THE LOGIC OF THE "LAST WORD" TO THE DIALOGICAL MODEL OF CONSTITUTIONAL LEGITIMACY

Abstract

The separation of powers stands as a foundational element of the Democratic State governed by the rule of law, playing a decisive role in the protection and realization of fundamental rights. Yet, within contemporary constitutionalism, this institutional arrangement is marked by persistent tensions, particularly regarding which branch holds legitimate authority to deliver the final interpretation of the Constitution. This article addresses this issue through a critical examination of the traditional opposition between majoritarian democracy and counter-majoritarian judicial review. It first explores the relationship between legislative sovereignty and the role of constitutional courts in safeguarding fundamental rights. It then discusses the theoretical models that support judicial supremacy and legislative supremacy, highlighting their limitations in the context of pluralistic societies. Drawing on the contributions of Conrado Mendes, the study advances the notion of constitutional dialogues as a means to overcome this dichotomy, understanding constitutional interpretation as a continuous process of institutional interaction. At the same time, it incorporates Will Waluchow’s perspective of constitutionalism as a “living tree”, whose meaning evolves in harmony with the moral commitments of the political community. Ultimately, the article argues that the effectiveness of fundamental rights does not stem from the hierarchical imposition of a single authoritative interpreter, but from the construction of dialogical legitimacy grounded in institutional cooperation and ongoing democratic deliberation.