FROM A REPRESENTATIVE DEMOCRACY TO A DELIBERATIVE DEMOCRACY. SOME NOTES ABOUT THE IMPORTANCE OF A PROCEDURAL BASEMENT OF FUNDAMENTAL RIGHTS OF THE FEDERAL CONSTITUTION OF 1988.

Abstract

The recognition of human rights by the contemporary Constitutions, in fundamental rights form, took the positive constitutional systems to incorporate ethical, moral and evaluative contents, with evident repercussions on its normative effectiveness. This fact, as well as the change of the social, economic and cultural context of the last quarter of the 20th century, led to  emerge  a  new  modality  of  democracy:  the  so-called  deliberative  democracy  (or

participative). The relationship between "deliberative democracy" and "fundamental rights" remains  evident  by  the  circumstance  that  in  contemporary  democracies  the  public deliberation lends itself not only to allow the society, in a democratic way, could define which are the rights that are considered as fundamental, but also to establish the contours, the limits  and  the  scope  of  these  fundamental  rights.  In  addition,  the  crisis  of  social constitutionalism shifted to the Judiciary the monopoly of the last word in constitutional interpretation, provoking the loss of distinctness between politics and law. Although the Federal Constitution of 1988 (CF) have made substantial choices with greater intensity than those related to procedural mechanisms of democracy, the increase of our social complexity, the insufficiency of the institutional political system to attend the social and collective demands and the emergence of a new virtual public space, allows us to identify that also in Brazil the contemporary debate on deliberative democracy has importance to the law.