Democracia deliberativa e jurisdição: a legitimidade da decisão judicial a partir e para além da teoria de J. Habermas

Abstract

This thesis studies the relationship among power, law and democracy under the view of post-conventional societies, taking as reference the theory of discourse and deliberative democracy of Habermas. The thesis deals with the legitimacy of the exercise of the institutionalized power with emphasis on Jurisdiction. It rethinks this specific form of action of the two hypotheses and adopts a singular failure of the legislative performance, referring to cases of anomie and insufficient adaptation of the only law subject viable of application. It demonstrates that only the discursive opening between Jurisdiction and the public space ensures a legitimate basis for judicial decisions and does it by offering arguments to the critical theory of Günther, which was used by Habermas to conceive the jurisdictional role of the state. It claims that it is possible to rethink this view, when considering the complexity, plurality, and variety of contexts, procedure and hermeneutics openness which are typical of the current social model. It rethinks Habermas' theory to defend that the jurisdiction as well as the Parliament can act discursively with citizenship for the construction of a normativity in which the legitimacy derives from the force of the best argument. It proposes that the Jurisdiction receives all the valorative contribution to the formation of a rule of argumentation, based on proportionality, and then develops an interpretation based on principles of this rule, aimed at the decision of each case. It brings examples under the constitutional jurisdiction and defends equal argument for the ordinary jurisdiction. It builds a proposition to the political philosophy of law and conceives a jurisdiction beyond its decision-making role, considering it also as a participant of a public speech with the citizenship. The work suggests a theory that is radically democratic and which is outside the tradition, characterized between deductivism/legalism and decisionism/activism, historically embedded in the profile of the various courts of the state