A tensa relação entre o controle abstrato de constitucionalidade e o princípio democrático no pensamento complexo

Abstract

This thesis discusses the legitimation process for the Law to be executed through the Judiciary and the binding to the democratic principle. Through interrelation and challenges that are established to the democracy, this thesis focuses specifically on the way the Brazilian Federal Supreme Court acts regarding the abstract constitutional control. It also takes as research paradigm, the complex thought in order to acknowledge that the authority of the act of the Judiciary Power must be presupposed, but its legitimacy depends on multiple factors that are interconnected in a system relation with historical, social and anthropological conditionings that presuppose the uncertainty of the knowledge. This thesis also takes as an element of a legal decision validation of legitimacy, the proposal of the Law as Integrity and aims to provide an answer to the following question: when considering the dogma of the process of abstraction and legal decisions that do not present arguments based on principles that are in accordance to the patterns of the Law as Integrity, does the abstract control of constitutionality performed by the Federal Supreme Court violate the democratic principle understood through the complexity paradigm prism? The search for the answer starts with the contextualization of the complexity as a paradigm of knowledge, taking as a theoretical frame of reference the complex thought of Edgar Morin. Subsequently, it intends to comprehend the repercussions of the rationality sustained by the complex thought of the social execution of the democracy, specifically regarding the political and legal systems. In the legal system sphere, this thesis discusses the problem with the autonomy of Law as a normative practical problem, which is based on the legitimacy of the postulates of the theory of Law as Integrity by Ronald Dworkin. Then, this thesis describes the means of constitutionality controls, highlighting the particularities of the abstract control of constitutionality. Finally, through the case analysis, it refutes the basic assumption that the abstract control is always democratic, since the requirement of the confirmation of thematic relevance and the decisions sustained by political reasons and not principles, lack legitimacy when they violate the democratic principle.