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Title: A legitimidade da participação processual na tutela dos direitos difusos
metadata.dc.creator: GATO, Gisele Augusta Fontes
metadata.dc.contributor.advisor1: MAROJA, Ângela
Keywords: Teoria do direito
Processo civil
Interesses difusos
Ação civil pública
Participação política
Issue Date: 2007
Publisher: Universidade Federal do Pará
Citation: GATO, Gisele Augusta Fontes. A legitimidade da participação processual na tutela dos direitos difusos. 2007. 123 f. Dissertação (Mestrado) – Universidade Federal do Pará, Centro de Ciências Jurídicas, Belém, 2007. Programa de Pós-Graduação em Direito.
Abstract: The theoretical approach of the procedural participation is found at a point of intersection between a social-political theory and a legal theory, in order to achieve that it was necessary to initiate from Habermas social theory, proceeding to his political theory and only then to his legal theory. In terms of a discursive theory, the perfection of judicial sentences derives not only from the rationality of the legislation, but also from the reproduction, in the scope of the legal speech, of the conditions of the rational speech, bearing in mind the pragmatic limitations that occur on the legal speech, limitations that arise from the specifics of the legal speech whose main purpose is resolving decision making issues, cannot be developed under the same basis of the ethical speech. Even though the Legal speech is limited by the pragmatic impositions in it, the same way the practical speeches in general, the argument is necessary to the rational justification and the perfection of the sentence, and it is in this aspect that the legal speech connects with the participation, essential for the rational justification and legitimacy of the sentence. Thus, the procedural legislation must be submitted to critics in order to verify if the procedural participation prescribed in the legislation is capable of guaranteeing a legitimate procedure. In our national legislation two situations are not justifiable rationally. First, the one that refers to the current judicial procedure, based in the individual paradigm, insufficient for processing deals formulated based on diffuse rights for they hinder the necessary argument about the legal paradigms and adequate representation that will be presented at court. Second, the restriction to the individual participation in the majority of the procedural actions involving the protection of the diffuse rights, which cannot be rationally justified. Although there is an indicative of change consisting of a first draft of a code of collective process considering legitimate the participation of any member of society. This extension of legitimacy does not apply to all actions that can be used to tutor diffuse interests and rights; the constitutional control was not among the changes. Therefore the discussion over the subject of procedural participation cannot be closed, not even after the promulgation of the code of collective process, due to the importance of the participation of all the interested parties, or of its legitimate representatives, in any judicial procedure where its interests or rights are being questioned. Only by continuing the discussion around the insufficiencies of the judicial procedure in the liberal paradigm for protecting the diffuse rights will we be able to create a rational argument on the subject, whose conclusion represents the victory of the best reasons.
Appears in Collections:Dissertações em Direito (Mestrado) - PPGD/ICJ

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