Judicialização cooperativa: equilíbrio interinstitucional no controle judicial de políticas públicas

• Autor(a) principal: Silva, Fábio de Souza
• Data de Publicação: 2015
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9324
• topic: Judicial review of public policies; Cooperative judicialization; Controle judicial de políticas públicas; Judicialização cooperativa; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO

The judicialization of politics is a world reality, but in Brazil it has peculiar characteristics, especially when it s about the control of public policies. The phenomenon appears with great force in the country, producing positive effects, such as enforcement of legal and constitutional standards. However, it offers risks ranging from the imbalance of the democratic game, to the commitment of the already precarious government planning. The cooperative judicialization is a proposal for judicial action strategy that, without giving up the achievements of the new role of the Judiciary as a political agent, seeks to reduce the risks of interaction between Law and Politics, through the identification of cooperation conditions the must be present in the judicial review: i. the jurisdiction must keep its focus on protection of the rights, interfering in policies so only when absolutely necessary for the fulfillment of its institutional mission; ii. the procedural control must have priority over the substantive control, in order to give preference to the decisions produced by the political arena, just buoyed by judicial review, unless there is no other ways to protect the right; iii. the definition of the boundaries for the political decision should vary according to the institutional capacity of the arena actors compared to the court s capacity, increasing or reducing the intensity of de judicial review according to the ability to produce a good decision; iv. the judicial protection of a right must consider the projection of the decision s effects to all people in the same situation, as it was included in a public policy; v. judicial decisions involving interference in public policies cannot be final, because they must be flexible enough to allow the creation and implementation of new plans to face public problems. Met these conditions, the cooperative judicialization culminates in the recognition of a dual role of public policies that begin to act as both object and paradigm of judicial review.