Constitucionalismo e direitos fundamentais : bases para uma interpretação do controle judicial de proporcionalidade do ato administrativo no exercício de competência discricionária

AUTOR(ES)
DATA DE PUBLICAÇÃO

2008

RESUMO

From the very point the Constitucionalism and the Theory of Fundamental Rights suffer alterations, we must give answers for the new problems which are being put in contemporaneous society, plural and complex, that is collecting a new concept for questions that developed themselves under the sign of liberal paradgigms of public interest, selfgovernment and abstention of State, concerning on freedom and party rigths. It is also important the Social State fragility phenomenon or Providence State, which showed that its compensatory mechanisms are not sufficient, no longer, to hold the spread dignity of the human being, which is the fundamental value of juridical order as a whole. In fact, we face a severe growth of power of other segments of society, not always conscious of the existence of the promulgation of indivdual rights, which are being continously despised, disdained, threatened and even violated by administrative Acts. We cant forget that personal and collective interests, nowadays, are coordinated in groups that congregate a huge piece of power, such as Trade Unions, Churches, Economic Groups, Patronal and Sport Associations among others. So, the changes occurred in society puting a part the idea of the State as a public enemy, provided that power is not considered its exclusivity, being shared now by the whole society. On the other hand, the fundamental rights give to the citizen not only the chance of identify himself as a juridical order addressee, but also as a co-author of this order, for, both exist the fundamental rights which hold the self-government exercice and those other rights which hold mens paticipation in the process of juridical order production, such as the fundamental rights of acting a political self-government from which the lawful right is created. In this context, we search, in this study, to strengthen the notion of social solidarity, as a form of giving new outlines to the modern society movements, in front of a Democratic Constitucional State of Right, much more cohese than primitive forms of organization, mainly in the aiming of bulding a society more just and a equalitary in its principles. This work also analyses the recognition of the presence of fundamental rights in Citizen-Social State relations, as an element able to generate a great expectation in relation to judicial actuation, because turns it responsable for the conformation of private self-government and for the fundamental rights, recognizing the imediate efficient judicial control in relation to the administrative Acts, through the intention of establish a proportionality postulate.

ASSUNTO(S)

direito constitucional - dissertaÇÕes controle jurÍdico - dissertaÇÕes direito constitucional direitos fundamentais - dissertaÇÕes ato administrativo - dissertaÇÕes

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