Democracy and the litigation of politics - problemizing the judicial decisions of social rights

Abstract

The judicial decisions of hard cases have different focuses for their resolution in the Positivism or in the Post-positivism. In both cases there has been a great difficulty for the delimitation of the judicial discretion, because, in synthesis, this would be the limitation of the judicial subjectivity. In the Kelsen´s doctrine, in which the positivist though is better expressed, the juridical order is complete and, for this reason, we can not speak in gaps, once the judge will look for and find in the system the answer to decide a concrete case. For Bobbio, the legislation has unit and coherence and he has not accepted gaps in the legislation. Thus, he has promoted the structuring of conflict’s methods of resolution inside of the legislation, which are: “1) the judge has to judge all controversies that has been presented for his exam; 2) he has to judge them based on a rule of the system”, once both doctrines have come from the Legislated Right, separating, consequently, the Right of any moral inserts of the ruled norm. In the Post-Positivism doctrine, which has been introduced for us by Paulo Bonavides, we will find a wide emphasis for the resolution of the conflicts, in which principles are considered norms. According to Ronald Dworkin, this transformation has won force and has been consolidated from the second half of the last century to nowadays as a return of the philosophy and policy discussions for the resolution of the conflicts, because there has been a minor judicial discretion when spaces are opened for the decision of principled subjects that start to be norms and have cogent appliance. Thus, we could understand that fundamental policy decisions in the choices of public policies have been replaced by judicial decisions based on the principled foundations contained in the Constitution. This paper intends to promote the approximation of the hole of the jurisdiction function and the judicial decision in the democratic context, as well as make an analysis of the system, as a manner of contenting the discretion. It will also verify the function of the equality principle and the hole of the Judiciary in the judicial decision in hard cases of public policies.