Jurisdição constitucional brasileira e os limites de sua legitimidade democrática / Brazilian judicial review and the limits of its democratic legitimacy

AUTOR(ES)

Renato Stanziola Vieira

DATA DE PUBLICAÇÃO

2006

RESUMO

The study about the limits of the democratic legitimacy of the Brazilian Judicial Review aims at attempting to establish juridical criteria so as to lay the foundation of its acceptance in the national juridical scenario. The selected theme is justified as the controversy about the democratic nature of the Judicial Review goes alongside its inception and development since its first appearance, in the United States of America and, at a later period, in Continental Europe. In Brazil, much as the technical-dogmatical aspects of the Judicial Review have been studied, there seems to have been the absence of an approach focused on the imbrication of juridical and political aspects as regards the democratic legitimacy. As to the research hypotheses, this study suggests that the Brazilian Judicial Review has, in essence, democratic legitimacy and its analysis would deserve specific attention, bearing in mind the configuration this jurisdiction has been given since 1988 especially after the Constitutional Amendment no. 03, of 1993, and Federal Laws no. 9868 and 9882, of 1999. That happens because the democratic legitimacy of the Judicial Review depends upon the knowledge of its limits, and in Brazil a massive presence of the Constitutional Jurisdiction has been noticed in some aspects, whereas its absence has been noticed in other aspects. Therefore, as far as the theoretical and methodological aspects are concerned, the option to discuss Constitutionalism was made in order to point out, in time and space, the similar origin of the Judicial Review in the United States of America and in Europe. After that, the evolution of this institution in Brazil was analysed, which led to the post-1988 configuration and consequent constitutional amendments and legislation subordinate to the constitution. Throughout the research a specific doctrine was employed on each approach as well as national and foreign jurisprudence, the latter with an emphasis on the Supreme Court. The result revealed the main foundations of the democratic legitimacy in the Brazilian Judicial Review, and, based upon them, the focus fell on the critical points which require reshaping of the Brazilian model, be it in consideration of the excesses of the Judicial Review or be it in consideration of its deficiencies. From the very beginning the premise that the study of the Judicial Review, particularly the Brazilian one, is the study of its limits and insuffiencies, was embraced

ASSUNTO(S)

legitimidade judicial review jurisdição jurisdiction jurisdicao -- brasil constitutionalism jurisdição constitucional brasil -- direito constitucional direito constitucional legitimacy constitution constituição constitucionalismo

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