Desjudicialização de Conflitos e Democracia Processual: um convite à participação procedimental e ao protagonismo do cidadão na pós-modernidade

Abstract

This thesis particularly analyzes the culture of lessening the jurisdiction of courts through access to the judicial system based on a broader conception of jurisdiction pursuant to a time of national jurisdictional crisis and insufficiency of strictly State responses to conflicts arising in the already stressed social sphere - taking as assumptions the fact that the judicialization and the lessening of the judicial involvement through access to justice in conflicts represent the two sides of the same coin. That is, these are hypothesis that represent how the resolution of social conflicts, and why not say, the production of law itself, are routed and managed in a postmodern scene marked by a necessary and democratic plurality. This paper intends to present a brief attempt to systematize the lessening the jurisdiction of courts through access to the judicial system, further detailing its position in the Brazilian legal system through distinct and varied features and in the light of the aforementioned benchmarks. The study emphasizes also how the procedural participation can be rendered operational as a citizen and democratic guarantee in the formation of State and non-State provisions from a balanced and polycentric procedural structure. The adoption of a general procedural theory, based on a semantic-normative approach between the concepts of procedure and proceedings is also based on this critical scope, with the contribution of new concepts, especially from the reinterpretation of the principle of access to court, which can no longer be mistaken as a mere formal access to courts (Judiciary Branch), let alone connected to the idea of a claim for access to a system of rights already provided. Finally, considering the beginning of the effectiveness of the new Code of Civil Procedure, it has been decided, methodologically, to disentangle two new concepts in the legal order (procedural business and independent evidentiary procedures), which, in our opinion, unfold and show an unquestioned democratic deepening, built by the novel procedural paradigm. Therefore, the hypothesis defended herein ultimately entangles the assumptions related to the expansion of jurisdiction, the legal pluralism, the procedural participation as a democratic vector in State and Non-State decision co-authorship, besides the semantic-normative approach between procedure and proceedings, all aiming at withdrawing an arbitrary and abstract legal homogenization that simply shrugs off the complex and multifaceted contemporary times. In other words, it primarily goes beyond and anchors itself in the pluralism of sources and legal models that create new fair procedures nowadays, being all this wrapped in the assumption of new hermeneutic paradigms and new forms of production of Law.