Jurisdição constitucional brasileira: entre a (in)distinção do direito e da política e o papel hermenêutico dos direitos fundamentais

Abstract

This thesis is the result of a research that deals with the phenomenon of the judicialization of Politics, in the context of the constitutionalization of Law, notably in Brazil. The global expansion of the judiciary since the mid-twentieth century has become a recurring problem of contemporary democratic theory throughout the Western world and, belatedly, in Brazil. Under what justification can non-elected judges interfere directly with the constitutional attributions conferred on the representative powers? This is how the question is usually formulated by tradition. This tendency to expand the borders of Law on Politics has generated diverse reactions. Some consider it pathology of modern social life, pointing to serious democratic deficits caused by the interference of judges on political issues. Others, on the contrary, defend the idea that the Judiciary exerts a function of social and political representation, not of the voters properly, but of the collective memory, which consists in maintaining and giving life to the fundamental values of Democracy, regulating the adjustment process of the Constitution taken as a social contract. The thesis investigates an alternative solution to this dilemma, offered by facing the problem of interpretation of Law. It seeks to demonstrate that the hermeneutic role of fundamental rights, at the present time, acts as a limiting factor for judicial discretion and judicial activism resulting from it. It proposes that Politics and Law maintain a relation of complementarity among themselves, alerting to the risks of both the politicization of the Law and its (des)politicization. Impeachment was chosen as a case study because it is the most visible aspect of the research on the (in) distinction between Law and Politics, which will be done both from the perspective of philosophical hermeneutics and from the functional-systemic theory