A dimensão objetiva dos direitos fundamentais: contribuições hermenêuticas e controle de políticas públicas

Abstract

Fundamental rights, in addition to their traditional view of citizens subjective rights in the face of the state, can also be viewed in its objective dimension, from the idea of order of values emerging from fundamental rights systematically considered. The idea is not new, having been developed in Germany since the early decades of the twentieth century, but has not yet been detailed in the homeland doctrine, despite its many doctrinal and jurisprudential references. With this study, we seek to develop some potential of this theoretical framework, the objective being to investigate the possibility of seeking constitutionally adequate responses in the view of the objective dimension of fundamental rights, and the idea of order of values underlying it. To this end, we intend to put the issue in the main theories of fundamental rights in vogue in contemporary constitutionalism, also bringing to discussion problems of philosophy of law and political philosophy about the influence of values in legal discourse, aiming to investigate the possibility of their rational and lawful use, especially in a growing judicial activism environment with political and ideological pluralism. After, we intend to develop some possible practical applications of this proposed theoretical framework, especially with regard to its influence in the constitutional hermeneutics and, more specifically, the judicial review of public policies.