O constitucionalismo dialógico e as audiências públicas: uma análise sistêmica do monismo plural brasileiro

• Ano de defesa: 2017
• Autor(a) principal: Oliveira, Jadson Correia de
• Orientador(a): Silva, Roberto Baptista Dias da
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Direito constitucional - Brasil; Audiências públicas - Brasil; Controle de constitucionalidade; Monismo
• Palavras-chave em Inglês: Constitutional law - Brazil; Public hearings - Brazil; Judicial review; Monism
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://tede2.pucsp.br/handle/handle/20588

This thesis analyzes the establishment of a dialogical constitutional jurisdiction through public hearings, that is, the materialization of a constitution with the participation of other actors, in order to encourage the social participation in the Brazilian constitutional jurisdiction. The investigation begins by making a correlate study among the constitutionalist movements, the appearance of the first constitutions and the social participation in the interpretation of these constitutions. The thesis is developed through the constitutional models along with a strong social participation, especially the American and the Israeli ones, as well as through both the American popular constitutionalism and the dialogical constitutionalism, respectively. Both theories aim to remove the judicial protagonism of the constitutional interpretation, while at the same time they conceive an effectively political and constitutional growth society. Next, the thesis analyzes the New Latin American Constitutionalism, its historical milestones, characteristics and differences with Neo-constitutionalism. Special attention was given to the study of the Colombian, Venezuelan and Bolivian constitutions. In the Andean constitutionalist movement, the defense of Legal Pluralism and the Plurinational State stand out, since they propose the autonomy of the originating peoples before the modern State and the equivalence between both the origin state and the native rights of those originating peoples. Later, in a specific chapter, the thesis approaches the influence of the New Latin American Constitutionalism in Brazil and signals, as an alternative, the holding of public hearings by the STF - the Brazilian Supreme Court - making a study of the theme from Niklas Luhmann's Theory of Systems and the concept of Constitutional Patriotism defended by Habermas. The investigation points out that public hearings serve as an instrument of social participation able to allow the cognitive opening of constitutional jurisdiction in order to asimilate social expectations under the cloak of its own legal code. Thus, although the Brazilian constitution of 1988 is clearly neo-constitutionalist and multicultural, this does not mean that its implementation will not respect the anthropological and social characteristics of Brazil. It is concluded, then, that the strong social participation does not require the presence of a pluralism or only takes place in a Plurinational State, even because, like the Andean European states, they were formed by the linking up of several originating peoples, such as the case of Spain, without, however, idealizing the necessity of the characteristics pointed out by the proponents of the New Latin American Constitutionalism