Public responsibility or deliberative dialog: cooperation as protection of access to justice, to adversarial procedure and to fundamental rights in conflict resolution

Abstract

Honoring the fundamental rights and guarantees of adversarial procedure and access to justice is inherent of the Democratic State under Constitutional Law. Rational and dialogic persuasion can reveal itself an effective instrument in the process of social pacification with justice. The objective and radiating dimension of fundamental rights imposes obligations to subjects involved, reaching both Public Administration and private individuals. The fundamental rights of required obedience encompasse the adversary procedure as understood by the Federal Supreme Court according to the issued document RE 434.059/DF, which especially recognizes the right to see their arguments effectively considered in the drafting of the final decision. Pluralization of argumentative reasons increases the likelihood of meeting the discussed need in a cooperative manner by those involved and, thus, maximizing access to justice and the achievement of fundamental rights. Such communicative premises must also be extended to deliberative dialog, with guarantee of autonomy of those involved in conflict solution negotiations.