Agir comunicativo e democracia: uma proposta para a legitimação da jurisdição constitucional

Abstract

Viewed from the perspective of the medium of social integration that was once relegated to religion or other transcendental foundations, Habermas will seek to apply his theory of communicative action to the creation of positive law by inserting in the legislative process aspects of a moral and procedural democracy, materialized by its principle of discourse, having as background the fundamental rights and the popular sovereignty. Conjugated the Habermasian thought with the sensible change in the practice of the jurisdiction - especially the constitutional one - from the acceptance of the principles like normative species, and in particular after the change of the liberal paradigm to the wellfare state paradigma (diagnosis that is shared by Habermas), it is proposed to reflect on the possibility of transposing his theory of communicative action as a response to frequent questions about the democratic legitimacy of constitutional courts in decision-making that seem to complement the activity of the democratic legislator.