A afirmação constitucional e transconstitucional dos direitos fundamentais: justiça ou democracia?

Abstract

This article discusses the movements of Constitutionalism and Transconstitutionalism from the perspective of binomial justice versus democracy. It briefly analyzes the historical evolution of the balance between systems of law and politics and concludes that the affirmation of human rights in the modern world is centered on the Judicial Branch, as an institution responsible for defining justice and protecting individual rights, even when they are counter-hegemonic. At the same time, it studies Transconstitutionalism and Intercultural Constitutionalism Theory in order to find, for the challenges of peace, security and the affirmation of human rights, alternative solutions that transcend state monism and classic constitutional paradigms, which are limited to the elements of territory, population and nation. From these perspectives, this article addresses the connections between justice and democracy and equality and pluralism in the mentioned theories to conclude that the permanent and constructive dialog for the affirmation of human rights must maintain a balance between state, international and supranational justice systems, in addition to reinforcing new and old practices and democratic institutions. From the principles of base theories to the extraction of conclusions, the deduction method was used, in addition to the dialectic