O influxo do constitucionalismo transfronteiriço nas ordens jurídicas: a consistência argumentativa da jurisdição de garantias nos diálogos transnacionais

Abstract

In the structure of a judicial decision within the current globalized society, it is clear that the decisions of domestic and transnational jurisdiction are made in a dialogue among courts around the globe. Thus, it is undeniable that every day judges form different courts look abroad, looking for new arguments to justify their own cases. Therefore, the judicial decisions are not any longer an isolated process of deliberation of local courts. On the contrary, they are part of a transnational process of dialogue among courts around the globe. Moreover, the classical concept of nation-state sovereignty, raised from the peace of Westphalia in 1648 (treaties of Osnabrück and Münster), after the end of the Thirty Years War, based on territorial integrity and states as the primary actors in international relations, is taking new formats in the current international agenda. With the rise of a new globalized justice, based on the concept of globally-ordered world, the concept of sovereignty is replaced by a more complex interdependent cosmopolitan society, in which the idea of jurisdiction has be rewritten to endorse the concept of a fully integrated and harmonious interconnected world. Hence, mostly in the Twentieth century, the theory of sovereignty has been rediscussed in light of contemporary views about the nation-state. Similarly, the centered state conception of jurisdiction, based on the constraint of judicial decisions to the national borders, has been analyzed by a complex and interdependent society. Consequently, the use of transnational decisions brings a new standpoint to the Judiciary branch, in which the reference to other courts, provides an additional and useful instrument to deal with related cases. Thus, it is undeniable the influence of this transnational courts as an important theoretical reference in the different levels of judicial understanding, in a cross-fertilization process of ideas and approaches, that helps the courts to examine issues from a different perspective, in an interaction that increases the recognition of decisions taken by local and transnational courts. Furthermore, in this transnational process, judicial decisions are developed in light of the international and foreign paradigm, allowing new references for judicial interpreters, in a process that contributes for a mutual respect in the transnational community, with the oxygenation of ideas and paradigms used by courts. The goal of this Thesis is to understand the impact of cross-border constitutionalism in the legal systems, to support the rational of judicial rights review, based on the transnational dialogue that increases the legitimacy and respect of decisions taken by local and transnational courts, in a process of reciprocity, persuasion and acculturation, in regard of similar complex cases.