JURISDIÇÃO E HERMENÊUTICA FILOSÓFICA: A EXPERIÊNCIA PORTUGUESA E OS ENUNCIADOS NORMATIVOS BRASILEIROS

Abstract

In Brazil, with the Brazilian Code of Civil Procedure of 2015, it has been assigned greater relevance and a binding effect to judicial precedents, beeing the object of this research the normative statements such as “súmulas vinculantes”. These relate to the assentos institute for they consist in abstractions extracted from judgements, which have been declared unconstitutional by Portugal’s Constitutional Court in 1993 already. The research’es problem has been stated by the following approach: considering the portuguese experience with the assentos institute, do the abstractions of normative statements represent an obstacle to the comprehension of law under the optics of philosophical hermeneutics? Solving that question allows a proper exam about the validity and legitimacy of the critics presented against the brazilian precedent theory, because these have basis in philosophical hermeneutics. In order to conduct this research, it has been used bibliographic and documental research allied to a hermeneutical, phenomenological “method”. Throughout this work, it has been evaluated the characteristics of both portuguese assentos and brazilian normative statements, they have been brought together through brazilian dominant precedent theory, which philosophical roots lay in genoese legal realism. This is guided by skepticism about truth’s existence in moral issues and treats decisions as acts of will based on the interpreter’s subjectivism and on the use of language as mere instrument. On the other hand, it has been presented an impression of philosophical hermeneutics that affirms ethical cognitivism over genoese legal realism’s relativism, as well as the existence of truth in moral that must constrain every interpretation and, concurrently, doesn’t admit previously given answers about law considering human historicity. It has been stated that the existence of more abstractions similar to legal texts, as the assentos institute and normative statements, don’t represent an obstacle to law’s realization projected from philosophical hermeneutics, but it doesn’t mean that the brazilian critics are empty, because they paradigmatically receive the ontologic-linguistic turn and recognize the existence of truth in law is a matter of epistemic responsability as well as of law’s autonomy guard, wich is demanded nowadays by the current Democratic State.