Neoconstitucionalismos e interpretativismo jurídico: uma análise da importação, (des)acordos e propostas para a construção do novo paradigma constitucional no brasil pós-1988

• Autor(a) principal: Rebelo, Victor Bianchini
• Data de Publicação: 2020
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Repositório Universitário da Ânima (RUNA)
• Texto Completo: https://repositorio.animaeducacao.com.br/handle/ANIMA/15700
• topic: Neoconstitucionalismo; Interpretativismo Jurídico; Hermenêutica; Filosofia do direito

The present work analyzes two suggestions which were imported during the process of framing the new paradigm of Brazilian post- 1988 constitutionalism in order to establish theoretical parameters for a new constitutionalism after the commencement of the 1988 Constitution. That is the case of Neoconstitucionalism and Legal Interpretivism. The main goal in this research is to investigate the context in which these theories were elaborated, its main authors, as well as its differences to thereby establish how much influence they had over the formation of this new constitutional paradigm in Brazil. Through deductive methodology, with bibliographic and documental research, it was possible to revisit the movement who sought to set this new constitutionalism in Brazil, especially trough the Brazilian Doctrine of Effectivity (DBE), by Luís Roberto Barroso, and the Hermeneutic Critique of Law (CHD), by Lenio Luiz Streck, which are, respectively, among the main exponents of Neoconstitucionalism and Legal Interpretivism in Brazil. Therefore, the work intends to check the influential limits of each of both theories within the Brazilian post-1988 constitutionalism, and to point its controversial relations to Contemporary Legal Positivism (HJC). It was also included in this research a landmark decision by the Brazilian Supreme Court where a direct dispute between the two theories studied in this work was held, with a result that generates discussions over the role of the judiciary in the rule of law and democratic system. The research set out what each of the theories has to offer, and also developed a critique on the formation of the new Brazilian post-1988 constitutional paradigm, that, influenced by the tension between the pre-1988 legal traditionalism and the post-1988 Neoconstitucionalism, ended to diminish Contemporary Legal Positivism to a mere type of exegetical formalism. This way, the work propones a theoretical revision of the process that established the Brazilian post-1988 constitutional paradigm as a form of overcoming of legal positivism and also suggested future perspectives on the Neoconstitucionalism v. Legal Interpretivism debate, discussing the nature of each theoretical way –consequentialism and substantialism, respectively– next to the present dialogue between the positivistic affirmations that are in the core of the controversy about judicial discretion and its complex disputes inside the new separation of powers.