A jurisdição como locus democrático horizontal: uma análise hermenêutico-filosófica da legitimação democrática da decisão policêntrica

Abstract

The presente study, in order to deepen the Master Thesis research elements, presents as main objective the understanding / divergence between the foundations / arguments of the constituted powers, especially by the responsible one by the Delivery / Construction of Jurisdictional Protection (of the State), what is done in order to understand the legitimacy of judicial decisions in Postmodern Law. For this purpose, the Doctoral Dissertation sustains the analysis of historical evolution, which is done based on the contributions of Political Science and Legal Philosophy, very important social instruments in the construction of what is now conceived as Law. It is in the cultural mix of the e(in)volution of socio-political elements experienced in Europe and America (West) that the study will seek to understand terms which are dear to the Law, especially to the idea of Democracy, trying to establish the links between this form of conception of power and the necessary effectiveness, or not, of the Law, as well as the relation of democracy with the jurisdiction. In view of the foregoing, as academic clipping, it is important to establish the geographical and temporal limits for the proposed study. According as it was narrated, the text will address the evolution presented in Europe (more specifically England, France and Germany) and in America (United States and Brazil), having as motto the understanding of the democratic evolution of the law linked to the necessary reconstruction of the elements which embrace Postmodern Jurisdiction. As it will be demonstrated in the course of the work, the purpose of the study is to present / understand the need for a democratic reconfiguration by the jurisdiction, presenting the decision as an important mechanism for the realization of the new rights, this ones as the result of a new legal philosophy, in which citizens (no longer being an icon / legitimating people) remain enlightened of their important social role, at which point they present themselves as real participants in the democratic game, a game no longer linked (only and exclusively) to the vote (representative democracy), but to the effective participation in new spaces (especially the process / jurisdiction / decision), collaborating with the construction of a new political science (participatory democracy) which will provide an effective Democratic State Ruled by Law based on elements of extreme importance for this new legal context, among them the effective and direct participation of citizens, which must be ensured, especially and among other elements which structure it, by the contradictory and the ample defense. However, given these new challenges, some points should be clarified: Since jurisdiction is a new (and important) place for the democratic participation of citizens (as participants of a political and juridical game) how is the situation of separation / division of powers? Is the democratic legitimacy, when participatory, of the Legislative, of the Judicial, of the Judges and / or of the Decision? Is it about a legally binding, discretionary and / or arbitrary power? In this new democratic board, what is the role / limit of the Decision?