Conselhos sociais gestores de políticas públicas: natureza de suas decisões e controle jurisdicional

Abstract

The present study aims to investigate the character of decisions of the boards policymakers and the attitude of the Judiciary, when faced with the legalization of an impasse between the board and executive ie, when negative, by the manager, applying the policy decided by the board. To perform the analysis, is necessary to take off from major democratic theories of the twentieth century and to analyze the social participation in the 1988 Constitution. Then it deals specifically about the policy councils, their legal prevision, their participation in the formulation and monitoring of public policies. Before the multi subjective conflicts, characteristic of the impasses that deal with social rights that are object of public policies, Judiciary is required to make use of an hermeneutical model in which interpretation does not consist in an act of syllogism. Therefore, this paper analyzes the philosophical hermeneutics of Gadamer and its influence on the Structuring Law Theory of Müller, which is part of the constitutional concept of concretion. Thus, it is necessary to introduce elements of reality in the hermeneutical process in order to build the order for the concrete case. Approaches the idea that the real interpreters of the Constitution are all the ones it addresses to (Häberle) to conclude that, considering the constitutional prevision when the judicialization of the impasses between the Executive and councils takes place, the court must reverse the burden of argument, so that it fits this Power to check that the board's decision is not the one that best targets the promotion of social rights