A separação dos poderes e a doutrina do neoconstitucionalismo: uma análise a partir da forma de ingresso dos ministros da suprema corte

Abstract

The objective of this monograph is to analyze the compatibility between the political ideals underlying the principle of separation of powers and the new doctrine of neoconstitutionalism, in the light of the Brazilian reality, with regard to the form of admission of ministers to the Supreme Court. Therefore, a research was carried out to analyze the balance of the three powers of the Brazilian republic, comparing the original idea with the perspective of the new neoconstitutionalist doctrine, which is empowered, in practice, by the analytical characteristic of the Constitution and impacted by the form of investiture of the ministers of the Supreme Federal Court. This is because the principle of the tripartition of powers is one of the founding ideas of the Brazilian republic. Any later doctrine that does not aim at consonance with the fundamental basis will be perverting the order placed and doomed to pervert. Thus, it is essential to analyze neoconstitutionalism and the factors of the Brazilian political structure that will be correlated with it, and what is the level of convergence of this amalgamation with the entrenched clause of the separation of powers. This investigation used bibliographical research, based on books, articles, other academic productions, jurisprudence and legislation. The results obtained were the identification of an axiological divergence from the original conception of the theory of the three powers and the doctrine of neoconstitutionalism, regarding the performance of the judiciary; the understanding of an even greater empowerment of the Judiciary in the neoconstitutional context, due to the adoption of an analytical-type Constitution; and the possibility of a Brazilian Supreme Court, elevated to the highest power of the order, composed of ministers without the proper independence and capacity to meet such notoriety and social responsibility. Thus, it was concluded that the principle of separation of powers and neoconstitutionalism are dissonant doctrines, although they coexist in the same political order, where the latter is strengthened by the Brazilian legal reality and, consequently, distorts the balance of powers originally thought and inserted in the Charter Magna from 1988. Therefore, it is essential to reformulate the established order, establishing bases consonant with the legal spirit.