O Estado de Direito na Nova Teoria da Lei Natural: fundamentos e relevância avaliativa para o modelo de estado brasileiro

Abstract

The prevailing rule of law models in contemporary times, whether in the German, French, Anglo-American, or Brazilian context, have particularities and function as real examples (particular cases) of an ideal type (focal meaning) of the rule of law. In this way, they can be evaluated as central cases or peripheral cases based on the conception of the rule of law presented by the New Natural Law Theory, as they approach or move away from the characteristics of their focal meaning, especially the rationality present in legality and due process of law and the protection and promotion of basic human goods, to provide an environment conducive to human flourishing. Therefore, the conception of the rule of law supported by the New Natural Law Theory presents itself as a relevant possibility for evaluating the main concrete models of the rule of law established in contemporary times, including in Brazil today. Thus, this thesis aims to analyze how the conception of the rule of law supported by the New Natural Law Theory, in its formal and substantial dimension, makes it possible to evaluate the model of Democratic Rule of Law established in Brazil by the current Federal Constitution (1988). First, the research presents the distinctive concepts of the New Natural Law Theory that enable the foundation of a model of the rule of law, especially regarding basic human goods and the understanding of the polity. Next, the assumptions for the characterization of the rule of law are discussed, especially with regard to the type of authority that defines it and its difference in relation to the rule of men, highlighting the role of rationality for political authority, the meaning of supremacy of the law and the accountability. In view of this more general characterization, it becomes possible to present the formal and substantial dimensions that make up the rule of law, according to the New Natural Law Theory, placing legality, due process of law and basic human goods in its justification. Finally, an exposition and comparison is made between the Anglo-American, French and German models of the rule of law, in order to characterize the Democratic Rule of Law inaugurated by the Brazilian Constitution of 1988. In this way, it will be possible to evaluate the Brazilian model from the focal meaning of the rule of law supported by the New Natural Law Theory, highlighting similarities and differences regarding both the formal dimension and the substantial dimension. The research will have a bibliographic character regarding the concept of the rule of law and its manifestation from concrete cases, taking John Finnis as a theoretical framework and adopting the comparative, typological and monographic as the main methods of procedure.