O modelo dialógico de judiciário e a cidadania no Brasil: análise do tratamento judicial das demandas por efetivação dos direitos sociais

Abstract

There is currently a relevant political phenomenon in the construction of citizenship in Brazil: the presence of the Judiciary Power dealing with demands for social rights, due to structural problems that prevent the offer of goods or services by the State. The 1988 Constitution incorporated a program to promote social welfare and to guarantee human dignity. The possibility of judicial review of commissive/omissive acts, when this constitutional program is violated, allows the judicialization of political life in Brazil since the Constitution promulgation. In this context, the following question arises: how can the Brazilian judicial system, based on the dialogical matrix that is drawn in the Constitution, deals with the demands for social rights? This work is based on the hypothesis that there is a dialogical model drawn in the current Constitution for the judicial system, and the Judiciary must treat the demands for social rights in a dialogical way. The present investigation emphasizes that the judicial system, in order to democratically produce practical and effective results on claims for social rights in Brazil, must adopt the dialogical judicial matrix drawn in the Constitution and abandon the profile of controller of the constitutional meanings, developing more flexible procedural strategies opened to institutional dialogues. The analytical constructions around this constitutional matrix of the Brazilian judicial system came from the dialogical theory from Roberto Gargarella, due to the heuristic capacity concerning the legitimacy deficit of the Judiciary in the processes of judicial intercession in the political arena - when constitution and democracy are tensioned. This work proposes that the dialogical matrix of Judiciary drawn in the Constitution creates, within the framework of the Rule of Law, the conditions of possibility for the realization of social rights claimed in the judicial system, through changes, innovations and experiments in the structure of provision of social service, built on dialogue between interested actors. In order to arrive to that conclusion, the work follows a theoretical itinerary that investigates the meaning of the Constitution, as a democratic program of social justice, its repercussion on the judicial system, the justiciability of social rights, and finally analyzes strategies and procedural mechanisms developed by the dialogical model of Judiciary.