Uma teoria hermenêutica da responsabilidade: os direitos sociais entre o ativismo judicial e a decisão jurídica democrática

Abstract

This doctoral thesis has the purpose of research the foundations of the political responsibility of the interpreters in the production of normative sense, in compliance with the ideals of coherence and operative integrity, the perspective of a hermeneutic exploration of the dimensions of constitutionally adequate response to the realization of rights social, both in procedural level, and in the substantial plan. The problems to be investigated are: How to control the power and extend the fundamental freedoms of citizens, in particular the social rights? What are the limits and possibilities of judicial realization of social rights in a Brazilian Law Democratic State of Brazilian Law? Scientific research, based on the phenomenological-hermeneutical method, theoretically based hermeneutics philosophy and philosophical hermeneutics (Martin Heidegger, Hans-Georg Gadamer), Law as Integrity, of Ronald Dworkin, in a dialogue with the Constitutionalism Guarantees of Luigi Ferrajoli in the light of filtration Critical Hermeneutics of Law of Lenio Luiz Streck, seeks to identify hermeneutical parameters for judicial review and the effectiveness of social rights, from the development of Hermeneutics Theory of Responsability. The work is part of the first line of research of the Pos-Graduate Program in Law UNISINOS, whose thematic relevance conforms to the discipline of Legal Hermeneutics and Implementation of Rights, taught by Professor Lenio Luiz Streck. The aim of the thesis is therefore the hermeneutic reconstruction of social rights, with the structuring based on a proper understanding of the decision-making responsibility as constitutional guarantee of realization of substantial democracy. The hypotheses worked have the following perspectives of understanding: 1) The legitimacy of the jurisdiction in realization of social rights in the light of the concept of fundamental rights as trumps (Ronald Dworkin) and there is a complementarity between individual rights and social rights, which pre-exist the judicial decision. The idea of hermeneutics responsibility is the condition of possibility for the inclusion of the legal decision in the practical world, away from the notion of “choice” whose legal translation resonates in the design of discretion; 2) The hermeneutically appropriate response in terms of social rights calls for the adoption of a decision constructivism, in keeping with equal concern and respect that guide the community life, avoiding the “reasons of state”; 3) The dimensions guarantee the democratic legal decision on procedural and substantive level, focusing on content emanating from the appropriate response to the Constitution, can be divided, for didactic purposes, in temporal, political-legal, socio-economic, moral, cultural and integrative; 4) The construction of a Hermeneutics Theory of Responsability seeks to identify certain hermeneutical parameters for the judicial realization of social rights, namely, the ontological difference between the fundamental rights and the understanding of the dimensions of democratic legal ruling, the "romance chain", the hermeneutical circle and the statement of assurance, tradition, consistency and integrity, the value of the unit, the facticity and the same freedom. The enforceability of social rights and the limits and jurisdiction possibilities of action have worried community at large, which is why is necessary to differentiate between legalization of politics and activism, as well as a critique of neoconstitutionalism the type approved in Brazil, on the borders between Law and Policy. Following the reading of the phenomenon of corruption as a fundamental rights problem stems from the need to report patrimonial and estate, which, combined with the logic of the free rider, contribute to the increase in social inequalities. The root of the dilemma is at the discretion and the eventual construction, through the legal discourse, a true zone of immunity, which is opposed to the intense social danosidade and breach of legitimate expectations as a result of corrupting practices. In turn, the idea of social rights reveals the importance of a holistic approach, based on the value of the unit (Dworkin) and ontological-linguistic turn, to understanding the dilemma between proceduralism and substantialism, the unconstitutional omissions and judicial control public policy. Are developed, finally, the foundations of a theory of decision-making responsibility, proposing an authentic hermeneutic turn in relation to the effectiveness of social rights, with emphasis on the justiciability of the Supreme Court of Brazil. The quantitative and qualitative fragment took into account decisions taken between 1 May 1996 and 30 August 2015, especially given the jurisprudential developments around the effectiveness and applicability of fundamental social rights standards in the period.