O PRINCÍPIO DEMOCRÁTICO E A INTERPRETAÇÃO CONSTITUCIONAL ABERTA: ELEMENTOS GARANTIDORES DA CONSTITUIÇÃO JURÍDICA BRASILEIRA

Abstract

The reasons for the development of the present work are based on a research about the relationship between the democratic principle developed by JJ Gomes Canotilho and the technique of constitutional hermeneutics elaborated by Peter Häberle on the open constitutional interpretation as harmonic elements and guarantors of the Brazilian juridical constitution of 1988. The objective is the discussion regarding the conditioning of the normative force of the juridical constitution of our country towards broader and more pluralistic procedures of constitutional interpretation. We understand that fundamental rights are part of the basis of democratic legitimacy for open interpretation, both as regards the outcome and as regards the circle of participants. However, it is notorious that our contemporaneity presents, more and more, techniques of interpretations typical of a closed society, thus causing, in this way, the protection of political institutions in counterpart of society. Thus, techniques of constitutional interpretation strictly closed to society, bring about a true decline to the rule of law, thus leading to the incompatibility of the legal Constitution with the actual Constitution. In order to do so, the deductive method will be used, based on studies in classical doctrine, concluding that the democratic principle and the open procedures of interpretation have a strict relation with the affinity between the legal Constitution and the real Constitution of our society.