A possibilidade de decisões estruturantes do Supremo Tribunal Federaral sob o artigo 336 da Constituição Federal para garantir segurança jurídica e a transnacionalidade

Abstract

This Thesis addresses the possibility of the structuring decisions of the Federal Supreme Court, under article 225 of the Federal Constitution, guaranteeing legal security and transnationality. It was written in fulfilment of the Doctorate degree of the PhD Program in Legal Science at the University of Vale do Itajaí- UNIVALI, within the area of concentration “Constitutionality, Transnationality and Produc­tion of Law, linked to the line of research “State, Transnationality and Sustainabili­ty” and to the Research Project “Democracy and State in the 21st Century: Trans­nationality and Asymmetry. Its object is to determine the viability of the Federal Supreme Court to overcome the analysis of sovereignty through structuring deci­sions, conferring on article 225 a transnational legal nature. The general objective of this work is to identify the dysfunctionality in the performance of the ST and to indicate, in an organic and functional view of the Court in the international field, the possibility of issuing structuring decisions when acting in light of the transna­tionality of article 225 of the Constitution, considered new standards of the con­cept of sovereignty and the effects of globalization. The specific objectives of this study are to: a) describe the relevance of the role of the ST as part of the State; b) inquire into the causes of its dysfunctionalities and influence on legal security; c) present the concepts of sovereignty used in Brazil and worldwide, demonstrating the need to overcome/relativize the orthodox view of sovereignty; d) identify the importance of activities that enhance the functionality of the Supreme Court, fo­cused on acting locally and thinking globally, e) suggest that the traditional view of sovereignty can be overcome through structuring decisions of the ST. This resear­ch consists of four chapters: the first deals with the roles reserved for the STF in the Constitutional State of Law, its dysfunctionality and the legal uncertainty ari­sing from its performance; the second explores transnationality in more depth, through the analysis of transnational law and the historical evolution demarcated in the thought of Philip C. Jessup, intersecting the theme with the law and with research on transnationality in the context of international law; the third chapter focuses on the orthodox concepts of sovereignty and the theory of separation of powers, seeking to understand them as conceptual obstacles to the recognition of the legal nature of transnationality in article 225 of the Constitution, and the fourth chapter addresses the action of the STF in a rational way to make it a func­tional Court, with local action and global thinking, through structuring decisions, overcoming the possible conflict between the three Powers. For this study, the inductive method was used in the investigation phase, and exploratory logic in the data processing. In conclusion, it appears that the Supreme Court, acting in a functional way and through structuring decisions, with a review of the orthodox concept of sovereignty, can confer a transnational character on art. 225 of the Federal Constitution. The techniques of Referent, Category, Operational Concept and Bibliographic Research were used in the different phases of this research.