WHICH POWER DECIDES ON THE BASIC HUMAN GOODS OF JOHN FINNIS' NATURAL LAW THEORY IN BRAZILIAN DEMOCRACY?

Abstract

The work presents a description of the basic human goods in Finnis' theory (2007), which are: knowledge, life, play, aesthetic experience, friendship, practical reasonableness and religion. To then question which power has the basis to decide on basic human goods in a democracy. The article brings jurisprudence from the Federal Supreme Court in which the court ruled on basic human values, that is, basic human goods shaped outside the political arena, configuring a possible obstruction of the channels of democratic alternation and popular control. To explain the strengthened judiciary power, the text repeatedly uses Hirschl's theory (2020), which asserts that one of the causes of the strength of the judiciary is the avoidance of politicians in making difficult moral or political decisions, which, once decided, rarely present absolute numbers. of winners, therefore, with political spoils that are difficult to manage. This movement between powers causes a transfer of the locus of political debate, which migrates from the powers constituted by direct representatives of the people to the courts, reaching the doctrine about the separation of powers and democracy, otherwise let's see: basic human goods being designed by judges in to the detriment of powers that reveal popular sovereignty. The tension between democracy and judicial control of pure politics, apparently, is revealed when we analyze that a counter-majority court would have the last word in democratic processes for delineating the major political issues of a country.