DEMOCRATIC PARTICIPATION, DECISION MAKING PROCESS OF CONSTITUTIONAL JUSTICE AND EFFECTIVENESS OF RIGHTS IN THE CRISIS OF SOCIAL CONSTITUTIONALISM

Abstract

The theme of this paper is the democratic participation in the decision making process of Constitutional Justice, with a methodological approach that defines as object of study the role of participation instruments for the effectiveness of rights in face of the crisis of social constitutionalism. The juridical rationality of Constitutional Justice is analyzed with its methods and instruments of legitimation for the exercise of its role in the construction of the normative meaning of the Constitutions, as well as in the relationship between economic power and political power in the decision-making process regarding social rights. The objectives of the work are to identify the constitutional foundations for the instruments studied, to examine the Brazilian infra-constitutional legislation and to verify the existence of these instruments in other constitutional systems such as Spain's or, if not, the adequacy of their adoption. A critical analysis of the theme is intended through a bibliographical review of the theoretical frameworks developed in European neoconstitutionalism and in the new Latin American constitutionalism. This analysis indicates, despite the differences of contexts, a common denominator between the European and Latin American constitutionalist movements facing the crisis of the welfare state: the need to increase democratic participation and control over decisions of constitutional importance in order to guarantee the effectiveness of social rights. In conclusion, the Public Audiences and the Amicus Curiae institute are instruments of participation and dialogical deliberation in defense of the effectiveness of social rights and of control over the criteria and limits of the juridical rationality of Constitutional Justice.