Controle jurisdicional de políticas públicas : o direito cooperativo de Peter Häberle como fundamento para uma noção de cooperação entre os poderes e para a atuação do judiciário como um "novo" ator no âmbito das políticas públicas.

Abstract

This work discusses, based on the phenomenon of judicialization of Politics, a possible redefinition of the relationship between the Powers, from a cooperative logic, on behalf of the realization of fundamental social rights, which places the research in the concentration area of Doctorate in Law the University of Santa Cruz do Sul, especially the thematic axis concerning the instrumental dimensions of Public Policies. The work is innovative as it suggests that the actions between the Executive, Legislative and Judiciary should be taken into a positive light, as a shared task and not in a negative perspective of separation for performance of duties and strict limits of action. The question to be answered then is, based on the theory of Cooperative Constitutional State, of Peter Häberle, is it possible to say there is a change in the understanding of the relationship between Powers, due to the realization of accountable fundamental social rights, turning into shared tasks the ones regarding the creation and implementation of Public Policies, originally granted to the Executive and Legislative Powers, giving the Judiciary a new role, placing it as a “new” actor in the field of Public Policies? In order to answer this question, this work was divided into five chapters, which also correspond to the objectives proposed: firstly discusses the relationship between Law and Politics; then presents the Public Policies as a product of the relationship between Law and Politics and as instruments for the realization of fundamental social rights; the third chapter analyzes the theory of Cooperative Constitutional State of Peter Häberle, understood as the basis for a sense of cooperation between the Powers of the State and for the performance of the Judiciary as a new actor in the context of Public Policies; from there a new array of understanding of the acting of the Judicial branch in the scope of Public Policies from the notion of cooperation between the Powers of the State and finally, it is suggested the creation of mechanisms that allow the Judiciary to act more cooperatively with the other branches, becoming a “new” actor within Public policies. The hypothesis is that the initial idea of functional separation of the Powers must be adapted to the current model and to the settings of the Democratic Rule of Law, with the use of cooperation and mechanisms that facilitate it. For the development of the thesis, the approach method used in the research is the deductive. Regarding the procedure, the historical method in the development of all work is used, but more especially in the first chapter, when the approach between Politics and Law is done. Concerning the research technique, indirect documentation is used through methodological expedients constituent of bibliographical research. Finally, what was perceived is that the use of cooperation and proposed mechanisms and instruments, can cause the Public Policies to be more effective and efficient.