Estado de Direito e Democracia: uma análise crítico-hermenêutica do julgamento da ADPF nº 854

Abstract

This work is centered on the study of the historicity of the concepts of Rule of Law and Democracy for the purpose of identifying the sociopolitical context in which they developed and their evolution over time, in addition to defining their material substrate and their main theoretical references. So, we intend to uncover the foundations that form the Democratic State of Law (which is not a simple juxtaposition between the Rule of Law and Democracy), with emphasis on the system of Checks and Balances. Furthermore, a critical-hermeneutic analysis is made of ADPF nº 854 with the aim of verifying to what extent the Supreme Court's judgment on the rapporteur's amendments to the Annual Budget Law corroborate or violate the Democratic State of Law. To achieve this purpose, the deductive method of approach is used, relating it in the following way: argumentative concepts of a dogmatic nature of legal theory are taken, as directive and descriptive constructions of legal science, of a general nature, notably the parameters that constitute of the Democratic State of Law, applying them to the analysis of the judgment of ADPF nº 854. The normative-dogmatic approach comprises: the analytical normative approach – the system of constitutional norms (especially, Title I – The fundamental principles, the Title II – Fundamental rights and guarantees, Chapter VII of Title III – Public Administration and Chapter II of Title VI – Public Finances, extracted from the Federal Constitution of 1988) the hermeneutic normative approach – the appropriate interpretation of constitutional norms and normative argumentative-rhetorical – persuasive and controlled patterns of legal-constitutional discourse, taking into account the works of Dworkin and Streck.