O déficit de legitimidade democrática da jurisdição no contexto de sociedades semiperiféricas: um aporte no caso da execução antecipada da pena no Brasil

Abstract

The paper is about the democratic legitimacy deficit in Brazilian jurisdiction and the consequential lack of the Popular Sovereignty Principle in a context of a complex and semi-peripheral society. It illustrates specifically the Brazil’s situation concerning to the early execution of the penalty laws. In this scenario, it develops the question about the necessary construction of an emancipatory society in order to achieve the maximum realization of the fundamental rights, especially on the presumption of non-guilt. It also considers how detrimental a repressive penal system could be by spreading out a false legal speech that is both stigmatizing and reproductive of violence, which needs to be corrected in the project to consolidate a Democratic Constitutional State. Thus, it reflects an environment in which the verticalized power of judicial agencies is naturalized while they see the judge as a democratic vertex, mainly due to the constitutionality control regime adopted in the country. As a “Guardian of the Constitution”, the Brazilian Federal Supreme Court (STF) has the competence to carry out the compatibility examination between the constitutional legislation and the constitutional norms. Otherwise, this paper verifies the deficit of STF’s deliberations internally and externally. Thus, it highlights the importance of the Proportionality Principle for the legitimacy of judicial decisions, in both formal and material aspects. Notably, that is how the state intervention in the area of protection of fundamental rights implies a priority to dialogue the construction of a discursive-argumentative rationality for the structuring of an emancipated society, whose community is committed to the constitutional foundations. Therefore, this dissertation stands at a study case, exploratory researches, bibliographic and jurisprudential surveys and a critical examination of the main theorists’ lessons on the subject. Ultimately, it includes a multidisciplinary analysis about the constitutional criminal process and the philosophy of law by pointing the elaboration of radical democracy model that will manage new discourses of normative application for a dialogical jurisdiction in contrast to the legal solipsism rooted in the national judicial system.