Amici curiae e legitimidade: sobre as participações das instituições religiosas no controle concentrado de constitucionalidade brasileiro

• Autor(a) principal: Oliveira, Wagner Vinicius de
• Data de Publicação: 2018
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Institucional da UFU
• Texto Completo: https://repositorio.ufu.br/handle/123456789/22384; http://dx.doi.org/10.14393/ufu.di.2018.962
• topic: Amici curiae; Amici curiae; Controle concentrado de constitucionalidade; Concentrated control of constitutionality; Hermenêutica constitucional; Constitutional hermeneutics; Laicidade; Secularism; Participações sociais; Social participations; Direito; Hermenêutica (Direito); Controle de constitucionalidade; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO CONSTITUCIONAL

This research report, presented in the form of the dissertation, has as problematic the legitimacy of religious institutions in the concentrated control of Brazilian constitutionality carried by the Federal Supreme Court - STF (in Portuguese). Specifically, consists in investigating is what the role these institutions, while voluntary amici curiae, in the predecisional and decisional phases in the concentrated control constitutionality. Therefore, we emphasize the need to research mechanisms to increase social participation in the constitutional jurisdiction and understand whether is possible for certain actors not to participate in the public deliberation. For this analysis we use as reference the theory of the open society of the interpreters of the constitution by Peter Häberle (1997; 2013), according to which the constitutional interpretation must be carried out in plural form, this is, as many interpreters as possible, official and unofficial. It follows that democratic legitimacy goes beyond mere observance of formal limits. This fact, we use for the theoretical contextualization of the research the bibliographic materials referring to the variables of social participation, of judicial review, of the amici and secularism. Soon after, we proceeded the documentary analysis of the argument of non-compliance of fundamental precept - ADPF (in Portuguese) n. 54/DF and of the direct action of unconstitutionality - ADI (in Portuguese) n. 4.439/DF, as empirical testing of the plural interpretation hypothesis. This set allows a theoretical and empirical reading on the participation of religious institutions in the concentrated control of Brazilian constitutionality. The results suggest that the reality of Brazilian constitutional control extrapolates the open or closed society dichotomy of the interpreters of the constitution, since there are no reliable elements to support the existence of any of them. To summarize, at first glance, indicate an open and plural interpretation, however, when analyzed in detail we realize that the participation of religious institutions in the concentrated control of constitutionality are destined to the formal fulfillment, insofar as the plural debate does not produce the effective deliberation between the judges of the STF. In conclusion, we have to receive the social participation in the constitutional jurisdiction extrapolates the traditional meanings of democracy and of secularity, for example. Therefore, the open society of the interpreters of the constitution presents itself as a hermeneutic ideal what is build daily, a fact that does not mean to ignore their limitations and difficulties.