OS DIREITOS FUNDAMENTAIS E A ATUAÇÃO DO MAGISTRADO: NEOCONSTITUCIONALISMO E GARANTISMO

Abstract

This dissertation is the result of the investigation on the Fundamental Rights and their application by the Law Judges, under the inclination of the Garantismo. With the focus addressed preponderantly to the effectiveness of the jurisdictional services in face of the relative constitutional warranties related to the fundamental rights, the research tried to study the reflexion of the Neo-constitutionalism on the effectiveness of the protection and in the practical application of the constitutional principles. In this study it was taken into consideration that Kelsenian positivist-legalism is still adopted on the part of some juridical actors. Trying to face this thought, the main hypothesis of the necessity of the Fundamental Rights Protection was worked and as a first step to the investigation, the study concerning the doctrinaire vision of the three main points of the work was elaborated: Fundamental rights - Garantismo Juridical interpretation, based mainly on the teaching of Peces-Barba, Ferrajoli, Alexy and Perelman. In the sequence, the investigatory approach had the function of the jurisdictional and the exercise of the Magistracy as object under the focus of the garantismo. At the end, the jurisdictional practice, under the light of the Positivism and of the Garantismo were considered. The research tried to keep the connection of the Law Science with the Philosophy of Rights, Sociology of the Rights and with the Juridical Politics, in order to obtain a more broaden view of the issue that involves the application of Law, as well as of the New Rights. It was tried to confirm what effective result of the garantista jurisdictional practice is the protection of the Fundamental Rights based on the human being dignity and valorization.