The (dis)harmony between the powers and (in)tense dialogue between democracy and republic

• Autor(a) principal: Chevitarese, Alessia Barroso Lima Brito Campos
• Data de Publicação: 2015
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Brasileira de Políticas Públicas (Online)
• Texto Completo: https://www.publicacoesacademicas.uniceub.br/RBPP/article/view/3058
• topic: Direito; Democracia, República, Supremo Tribunal Federal, Poder Legislativo, Legisprudência, mandado de segurança.

The Brazilian Constitution of the Republic of 1988 establishes in its 2nd article independence and harmony between the powers. Occurs in certain aspects, the institutional dialogue shows contours of tension. Concerning a more positive role of the judiciary, there are the chances of filing for a kind of petition (writ of mandamus) before the Supreme Court, on the grounds of possible violation of subjective public right of parliamentary not submit to unconstitutional legislative process, especially in cases where there are matters included in projects that violate laws immutable clauses and procedures that violate the rights of minorities. However, would this action be a dysfunction of the theory of separation of powers and the very pillars of a democratic republic? This study aims to understand the dialogue between the legislative and judicial function concerning the legislative ‘nomogenesis’. It is a doctrinal and jurisprudential research that presents as a criterion of originality transposition of the doctrine of excess of legislative power for the purpose of technical preventive judicial review of constitutionality by writ of mandamus. Still presents the possibility of overruling Precedent 266/STF of 13/12/1963. We conclude that the legisprudence can be an instrument of control and conformation of tense dialogue between the judiciary and the legislature, considering that the task of creating a knowledge of the law is polygenetic, especially regarding the custody of constitutional precepts.