O Estado de direito, a criação judicial do direito e o contra-ataque legislativo

Abstract

This dissertation aims to study what the Rule of Law consists of, its origins and conceptions that have been attributed to it since Aristotle, and how the theme can contribute, in the end, to a theory of judicial decision. The principle of the rule of law extracted from the respective theorization submits the jurisdictional activity, in a State of Roman-German legal tradition, to democratically legislated law. Proposals for rereading the theory of the separation of powers do not have the power to introject, in Brazilian territory, a legal culture that is not aligned with the European-continental one, in which the law is the maximum expression of the democratic creation of the Law. Therefore, any and all proposal for a theory for the judicial decision in Brazil must be structured based on democratically agreed legislative acts. Despite the RomanGerman legal tradition, Brazil has contact with several theses, theories and movements favorable to the judicial creation of Law. Involved by them, the Brazilian legislator incorporates the Law of Introduction to the Norms of Brazilian Law, via Law n. 13.655, of april 25, 2018, provisions on “legal certainty and efficiency in the creation and application of public law”. For that, the congressman starts from the premise that the judge, integrates the State power that is, creates Law, and from the premise that the decision maker applies the legal norm to the specific case as an act of will. It turns out that, in addition to detachment from the Brazilian democratic-legislative legal culture, the facts of not excluding the subjectivity inherent in any comprehensive activity and that it is impossible for a text to cover all the application possibilities do not prevent, in the wake of the Hermeneutic Criticism of Lenio Streck's right, with support, in turn, in Heidegger's hermeneutic philosophy, in Gadamer's philosophical hermeneutics and in Dworkin's integrative theory, the interpreter to seek the correct, appropriate answer, therefore, to the Constitution. Therefore, the (principle of) rule of law with a European-continental profile is chosen as the maximum parameter of the judicial decision, in order to remove from the brazilian judicial scenario the harmful consequences that the elevation of the power to judge to the category of main character brings harmony between the powers and society in general, the autonomy of the law and democracy. The aim is, using the Hermeneutic Criticism of Law, to identify in the principle of the rule of law (legislative) the main objective criterion for the judicial conformation of Law, removing from the jurisdictional activities the judge's casuistic attitudes. It is concluded that the starting point of the judicial decision is the democratically legislated Law; the point of arrival, on the other hand, corresponds to what is recommended in and by the Constitution. The Constitution establishes the correct answer. The correct answer is in the Constitution.