O poder de polícia no Estado Democrático Brasileiro

Abstract

The aim of this research was to investigate the pertinence of the post-positivist theoretical framework in order to allow greater achievement of democratic precepts and the use of police power by state entities. It was hypothesized that, by not being satisfied only with the legal prediction of state-restrictive conduct of rights to consider legitimate the state police measure, Post-Positivism would allow the greater preservation of potentially limited fundamental rights. After deepening the theoretical support of the investigation and after reviewing the available literature, the empirical research in the Brazilian Federal Supreme Court was done by comparing the decisions found by filtering the keyword "police power" in two cuts the first five years of the 1990s, marked by democratic incipience in the country and in the last five years, in a context of supposedly more consolidated democracy. The results found allowed confirmation of the initial suspicion that Post-Positivism, when presenting the maxim of proportionality as an instrument for solving conflicts between fundamental rights, prevents its undue restriction, making it impossible to reverse the optimal realization of each one, and how rights fundamental elements are inherent elements of a democracy, Post-Positivism has been confirmed, in this empirical inquiry, as an adequate theoretical arsenal to allow the effectiveness of democratic precepts.