Jurisdição constitucional, política e democracia: o reconhecimento da política no Judiciário e o resgate do discurso constitucional democrático como freio ao seu avanço político na atual fase do constitucionalismo brasileiro

Abstract

The neoconstitutionalism, nomenclature used to refer to the current phase of constitutionalism, claims to be overcoming the classic constitutionalism model, having his followers describing it as a constitutive,argumentative and rational theory side, whose main objective is to ensure the realization of the Constitution through the implementation of fundamental rights it embraced. Having been recognized the normative force of the Constitution and the condition of the standard principles before mentioned as a mere secondary source of law, the role of the judiciary was redefined in accordance to social conformation, abandoning gradually the replicant task of legal texts formulated by the legislatur. Given the imperative of constitutional norms and principles of qualitative leap, it was necessary to develop techniques and theories that would allow the interpreter to justify rationally his choice, otherwise it would fall on discretion and the consequent decision fought. In this scenario, hermeneutical methods and theories of arguments have been developed in order to allow a non-sample choice and rational interpreter, away with this, a particular view of the judge, whose political and opinionated character, devoided of scientific basis would be so common to the positivist school that is to be overcome. Nationally, the disharmony between this theoretical formulation and everyday judicial practice, which is accused to be personalistic, has been generating distortions that lead us to a concern around its compatibility with democracy. Thus, the need to increase knowledge of the political judiciary, both in its present form as well as the judge's analysis of his historical collection, often without showing affinity with democracy, it proves to be essential to understand the importance of democratic control over the excesses committed by him, and to enable the national legal doctrine with a more reliable work in the development or adaptation of theories that aim to satisfy the Constitution, always taking into account the possible effects for Brazilian democracy.