Desacordos morais e efetividade dos direitos fundamentais: a jurisdição constitucional a partir da teoria minimalista de Cass Sunstein e dos diálogos institucionais

Abstract

We live in a social context in which each individual seeks his conception of life from his own understanding of what a good life would be according to his philosophy of life and his ideology. This way of thinking and relating to others has been solidifying as the State provides and evolves in guaranteeing and implementing fundamental rights, especially those related to civil liberties. However, manifestations of thoughts and forms of social experience will inevitably collide, thus giving rise to the so-called reasonable moral disagreements that will need to be mediated, but by whom? By which power, body, or institution? There is an expansion of the Judiciary that day by day tests the limits of its reach in an attempt to change social paradigms and, on the other hand, groups against sudden changes react. Herein lies the problem: is there any possibility for the Federal Supreme Court to decide moral disagreements without igniting a reaction of discontent that further dampens social tensions? The dissertation aimed to establish an understanding of the relationship between reasonable moral disagreements and the democratic legitimacy or not of the Federal Supreme Court in making decisions of this nature, as well as to investigate the possibility of a model of social composition in which plurality and social diversity are valued. reallocating the “constitutional mission” of the constitutional court. For this, it sought answers from institutional dialogues in a critical analysis of judicial supremacy and parliamentary supremacy, testing dialogic theories as a decision technique able to influence and invite other political actors to democratic deliberation in moral disagreements, whether exercising self-restraint by Cass Sunstein's minimalism, whether provoking a reflective thought through the technique of counseling and proportionality, or inviting others to dialogue itself