Separação dos poderes, tensão institucional e reação legislativa: uma reflexão acerca da interação entre o legislativo e o judiciário na definição do sentido constitucional

Abstract

This paper proposes to analyse the dynamic of institutionalized relations between brazilian's legislative and judiciary powers defining the meaning of the constitutional text in the light of the perspective of a dialogical and shared of its competences. Therefore the starting point involve a comprehension about the classic Theory of Fragmentation of Powers, its historic development and its actual conception, since the enhacement in the Checks and Balaces System and the expansion of the constitutional juristiction. Then, some constitutional mechanisms that favor institutional dialogue are presented between judiciary and legislative powers, an exemple of the unenforceability of the binding effects from the Supreme Court in control of the Legislative power's constitutionality, as like the aspects that involve its omissions and many other occurrences. At last, from the deliberative point of view, an investigation is accomplished about the definition of the constitutional interpretative processes last words, highlighting the phenomenons of the legislative reaction and backlash, presenting contributions of the Theory of Institutionalized Dialogs, whose process of analysis and deliberation promotes a dynamic of dialogical and cyclical interaction between the Powers. Therefore, the explanatory and exploratory method is used, inclining to a critical-methodological observation of reality, through bibliographic-documentary research to obtain data.