A aplicação das teorias dos diálogos institucionais na efetivação dos direitos sociais pelo Poder Judiciário: uma análise a partir dos julgamentos das Ações Diretas de Inconstitucionalidade por Omissão

Abstract

The present study evaluates whether the theories of institutional dialogues, which propose an interaction between the State Powers during the construction of the decision, are capable of increasing the democratic legitimacy of the Judiciary in the realization of the social rights provided for in the Federal Constitution. In order to achieve this objective, it is initialy demonstrated the criticism that falls on the Judiciary for exercising the task of realizing social rights in terms of benefits, in which this progressive action of judges and courts is seen as violating the separation of Powers and undemocratic. Subsequently, the theories of institutional dialogues and their various forms of manifestation in the judicial process are analyzed to reduce the democratic deficit of the Judiciary in the control of state omissions. In the intermediate phase of the study, an investigation is carried out on the direct action of unconstitutionality by omission, in order to be one of the main instruments to combat legislative omissions in the Brazilian legal system. Finally, it is examined, in a qualitative way, the application of dialogic techniques in direct actions of unconstitutionality by omission judged valid by the Federal Supreme Court in the time frame from 2008 to 2020. The research concludes that the concrete decisions handed down by the STF in the judicial review are, in the final analysis, only one stage of the institutional dialogue necessary for the realization of constitutional norms. By encouraging the participation of other institutions in the construction of the decision, the Court acts to reduce its democratic defícit in the regulation of the Constitution, since it does not aim to exclude polítical powers from this activity, but to insert them so that they can collaborate with the improvement of the decísion. In methodological terms, the research uses the hypothetical-deductive method of approach, using the techniques of bibliographic and documental research.