Teoria crítica da jurisdição: um estudo sobre a atuação jurisdicional brasileira pós-Constituição de 1.988

• Ano de defesa: 2015
• Autor(a) principal: Caldeira, Adriano Cesar Braz
• Orientador(a): Mascaro, Alysson Leandro Barbate
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade Presbiteriana Mackenzie
• Palavras-chave em Português: função jurisdicional; dominação econômica e política; garantias fundamentais do processo; utopia concreta; democracia deliberativa
• Palavras-chave em Inglês: jurisdictional function; economic and political domination; fundamental guarantees of the process; concrete utopia; deliberative democracy
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: http://dspace.mackenzie.br/handle/10899/23094

The current study aims to analyze the performance of the Brazilian jurisdiction considering the needs of the capital system and the political system, observing the behavior and the role to be played by the Judiciary and the legal thought, especially the procedure in the post-1988 s Federal Constitution period. At first, it was decided to examine, in the first chapter, the role of this Constitution in the process of continuity of the ideals for decades already established by the capital and, later, the political system. Therefore, it was understood well by reviewing, without intending to innovate in this regard, the main reasons that led to each of the Constitutions taken in our country, checking behavior of institutions, in particular the jurisdiction in times of crisis State, considering his parallel action with capital system and political. With this, it was possible to observe that the ideal of democracy, the ideal of the effectiveness of fundamental rights and guarantees is utopian, in other words, impossible while maintaining the conditions of domination established throughout contemporary history. The second chapter is intended to analyze the reasons that lead to loss of boundaries between institutions, both among the representative institutions as between them and the jurisdictional institution, so as to interfere in the outcome of the adjudication, constituting the phenomenon usually called by the doctrine of politicization of jurisdictional actions. As regards the third chapter, the goal pursued is the analysis of traditional scopes of jurisdiction, consolidated with special emphasis throughout the twentieth century, turning the process into a mere usefulness instrument of the substantive law completely abandoning their original purpose, in other words, to reestablish the equalities left behind by the substantive law and the social core itself against the political and economic ideals adopted by our society. Search is also in this chapter, reset the paths to jurisdictional actions directed to the expectations of society, not individually, which implies a new educational, social and judicial review, which goes beyond the resolution of the dispute, consider so as to the real social needs bordering that conflict, allowing the individual to understand the social context in which inserted in. Finally, the fourth and final chapter is intended to study the routes to be followed in order to establish full democracy, which result from a deliberative process, not an imposition. A process whose essence are rooted features like inclusion, equality and freedom, in other words, a democracy that is born from below, directly from the action of the mass that makes up society, organized, able to build a right of society and not of the institutions.