A democracia participativa na jurisdição constitucional brasileira: o amicus curiae enquanto mediador democrático no controle concentrado de constitucionalidade no Supremo Tribunal Federal

This master thesis aims to research the tension established between the judicial review and democratic theory which was always present in the constitutional doctrine of separation of powers. In this regard, the expansion of the Brazilian constitutional jurisdiction checked after the occurrence of the Federal Constitution of 1988 and the inertia of the Legislature in disciplinary relevant legal aspects of Brazilian society contributed to a hyperactivity of the Supreme Court. However, in a complex society of context, as is the Brazilian society, there are contained demands and political controversies that hardly would be well represented or resolved through the action of the Court of ministers at the expense of other government bodies. Among the supremacy of Parliament and the legitimacy deficit of these magistrates, is the constitutional text and the social fabric that makes this legal status of the political. Participatory democracy established by the guidelines of the Federal Constitution requires this perspective when the Supreme Court acting in place of concentrated constitutionality control. In a plural society, there is no reason to get rid of state decision moments popular participation. Lack the Supreme Court, this time, the democratizing perception that the institute brings to the interior of the Court, as state determination of space in which to come together and meet the aspirations of society and state claims. The dissertation investigates thus the possibility of amicus curiae Institute serve as a mediator of the democratic debate, to assist the Supreme Court in the preparation of the decision is, historically, that which is of greater legitimacy, from the perspective of a theory participatory democracy. Analyzes, likewise, the unfolding of abstract judicial review in the context of Brazilian law. Proposes, incidentally, a rereading of the separation of powers, with the call for the Judiciary be careful not to become the protagonist of national political decisions. It maintains, finally, that procedural opening the interpreters of the constitution, through the amicus curiae Institute, shows up as able to decrease the legitimacy deficit in the performance of the Brazilian Supreme Court.

A conduta judicial ética teórica e aplicada contida em princípios e regras deontológicos abrangidos pelo sistema constitucional

Research on Legal Deontology dedicated to theoretical and applied ethics on judicial conduct grounded in legal principles and rules set out in the Constitution of the Federative Republic of Brazil and the Organic Law of the National Judiciary, also contemplating propositional instruments covered by the constitutional system, which conveys behavioural paradigms inserted in the Bangalore Principles of Judicial Conduct, in the Universal Statute of the Judge and in the Latin-American Code of Judicial Ethics, as well as highlight the influence of those instruments in the Brazilian Ethical Code of the Magistrates and in the official complementary training of judges in charge of Judiciary Schools. The study provides the theoretical influxes of moral norm, passing by behavioural social norm to consolidate the ideal standards of judicial conduct into legal standards and related instruments. The Legal Deontology directed to the ethical judicial conduct is confronted with the stereotype that society expressed in relation to the judge's person, who is the political agent that interprets the law for making decisions which directly influences the realization of access to justice, that is constitutionally guaranteed to all. Core values inserted in the constitutional system intended to discipline the judicial conduct are presented and analysed under a critical view, since they are enclosed in prescriptive language that conveys behavioural aspects open to interpretation and which compliance is revealed as a proposition focused on promoting a better solution of interest’s conflicts under the responsibility of those who constitute the distinctive corporation of the Judiciary. The theme’s contextualization also focuses on applied ethics, based on the approach of normative and propositional instruments of deontological content, still focusing on the study of real cases examined by the Brazilian National Council of Justice, as part of its correctional goals.