A interpretação judicial no novo constitucionalismo latino-americano: a colisão entre direitos fundamentais e tradições culturais

Abstract

This research has as goal the of understanding the Judiciary role in a scenario of high complexity in its decision-making power, given the need to comply with the principle of separation of Powers on the one hand and the collision between fundamental rights and cultural traditions, on the other. Thus, in the New Latin American Constitutionalism, themes that should be covered by the political system ended up migrating to the legal system, with the advent of the Plurinational State, the defense of legal pluralism and the coexistence of several mechanisms considered jurisdictional, even though they do not belong to the Judiciary. The bases of the New Latin American Constitutionalism therefore became the starting point for structuring the discussion, followed by the analysis of the legal system immersed in a crisis caused by the increased complexity of its decision-making function. In other words, the absorption of cultural traditions by the constitutions of the New Latin American Constitutionalism culminated in an increase in the decision-making complexity of the Judiciary. Furthermore, socially sensitive topics, capable of generating intense debates in the Legislature, migrated to the Judiciary, placing the onus on the Judiciary. To achieve its aim, the research used the dialectical method and the analysis of the structure of the Judiciary in countries that adhere to the New Latin American Constitutionalism. The investigation, after going through the structure of the Judiciary in the countries of the New Latin American Constitutionalism and the conflicts that arose in the relationship with the Executive, concludes that the increase in decision-making complexity culminated in the increase in the Judiciary social legitimacy deficit in the New Latin American Constitutionalism countries.