O dizer do direito no Estado contemporâneo e o dilema da investidura na magistratura : voto versus concurso

Abstract

This dissertation deals with the State in contemporary times and the dilemma of the Brazilian judiciary, considering that its members are not supported by popular vote, which entails an apparent problem of democratic conformation and political legitimacy of its decisions in the face of the constitutional commandment that all power emanates from of the people, who exercise it through elected representatives or directly, under the terms of the sole paragraph of article 1 of the Federal Constitution. The difficulty increases in density, even more, from the new reality of jurisdictional activity in postmodernity, in which the judiciary is constantly being called upon to decide sensitive issues involving public policies, formerly affecting only the Executive Branch. To do so, initially a research is carried out on the investiture in the judiciary in Portugal, Italy, France, Spain, the United States, England, Argentina and Mexico, and, later, showing the Brazilian form. The approach is qualitative, being exploratory and descriptive, with orientation of a specific problem linked to the judicial legitimacy and the investiture of the judiciary. The results indicate a constitutional framework that authorizes judicial legitimacy, however, social acceptance and conformation regarding this legitimacy will not be possible if there is no contribution from magistrates.