As três perguntas fundamentais da crítica hermenêutica do direito: a aplicabilidade de uma proposta de limites à atuação do Poder Judiciário no Brasil

Abstract

The thesis discusses the normative potential that justifies the applicability of the three fundamental questions formulated by the Hermeneutic Critique of Law: is there a fundamental right with enforceability (first question)? can the fulfillment of this request be universalized in similar situations (second question)? Is there an illegal/unconstitutional transfer of resources that hurts equality/isonomy (third question)? From these questions, the investigation of the foundations of its applicability proceeds from the following axes: a Theory of Decision that places the three fundamental questions of the Hermeneutic Critique of Law as criteria for a constitutionally adequate answer; a Theory of the Constitution that makes it possible to affirm the enforceability of constitutional rights to benefits vis-à-vis the State; a Theory of the State that discusses the challenges to the universalization of rights in countries of late modernity; a Theory of Justice that offers parameters of equality for the allocation of budgetary resources. These theoretical axes compose the normative ballast that underlies the three fundamental questions of the Hermeneutic Critique of Law, providing elements for establishing limits to the Judiciary's performance in Brazil. From these points, the thesis concludes that the enforceability of fundamental rights, based on a Constitutional Theory, is based on constitutional legality; the possibility of universalization of these rights passes through a State Theory that places universalization as a requirement of the republican principle; the question of equality and isonomy in the allocation of resources, based on a Theory of Justice, establishes a principle foundation for the allocation of the public budget. From this balance, the work analyzes the notorious cases of the STF in terms of social rights between 2018 and 2021 in the light of the three fundamental questions of the Hermeneutic Critique of Law, collecting results that show the need to face judicial activism in Brazil by the legal doctrine, under penalty of putting at risk the democratic presuppositions of law analysis.