Estado de direito versus estado de exceção: análise das matrizes na República de Weimar e dos debates norte-americanos pós-11 de setembro à luz da teoria dos direitos fundamentais

Abstract

It attempts to show the relations of the Rule of Law in situations of crisis according to the theory of the fundamental rights. In a world that lives with terrorist’s acts, the issue of security/surveillance comes to justify the increasing of state power. However, the distinguished point between a state of exception and an authoritarian state is very small. Hence, it comes the question whether the survivorship of the Rule of Law is able to justify the violation of essential values to it or whether the subtraction of these values would already correspond to the bankruptcy of the legal order. In fact, there is an increase of the disrespect to the human rights in the state of exception, which is related to the diminishing of the checks and balances status; the challenge, here, is to resume the balance in its status quo. Indeed, this work presents the theory of the fundamental right, pointing out, besides the doctrinarian evolvement through the times, the generational theory, the sorts of restrictions during a state of exception and the concept of essential gist. Positively, the state of exception is verified from its historical precedents. Furthermore, it is also illustrated the reasons to include the measures of crisis’ management into the constitutions. Besides the evolvement of institutes used in France, England and in the United States, the context of the Weimar Republic is especially observed. Following this, there is the necessary presentation of the doctrines about Rule of Law and state of exception, and the theories developed by Carl Schmitt. In addition to that, it is also released how this question is brought by the Brazilian Constitution and by the Brazilian Supreme Court Jurisprudence as well. After that, it is showed the United States policy to combat the terrorism, revealing the Patriot Act, the detentions in Guatanamo Bay and the reasoning (ruling) adopted by the United States Supreme Court to this policy. Finally, it has been analyzed the most important authors in the United States after the September 11 who have discussed the subject liberty versus surveillance. The reality of the Weimar Republic are confronted with the actual Bush security policy. In short, this paper aims to give an idea about the need to protect the fundamental rights, even though in crisis’ period as an indispensable way to avoid the bankruptcy of the Rule of Law.