The judge's role in the democratic rule of law : by a garantista perspective in case the judgment of termination of pregnancy of anencephalic fetus submitted to constitutional jurisdiction

Abstract

It aims to analyze, from the case of termination of pregnancy of anencephalic fetus, today submitted to the constitutional court, the judge's stance noEstado Democratic Right. Used doctrinal material, eartigos jurisprudence published in magazines and on the Internet. It displays the current legislation in paísno that pertine the initial term and end of life; the divergent positions adopted by the courts in the analysis of the case; the impact of the debate on sociedadee the legal and philosophical issues faced by the judge in daquestão appreciation. It stands as a starting point two analytical axes: Proceduralism and substantialism. Explains the general theory of garantismo eminently substantialist, exposing the three meanings of the term. Indicates that the main results, north to solve the problem: a) the required option in Brazil by substantialist view, since it brings the Constitution fundamental rights seremconcretizados regardless of the will of the majority group; b) the reinterpretation of democracy in the democratic rule of law, as a synthesis of substantial democracy and formal; c) the legitimacy of the exercise of guided naconcretização power of fundamental rights. It follows that the adoption of Law Democratic state model implies the active role of the judge seeking aoalargamento the protective action of fundamental rights.