Hermenêutica fenomenológica e consequencialismo jurídico: do direito da técnica à interpretação constitucionalmente adequada da facticidade

Abstract

The thesis undertakes a phenomenological investigation of legal consequentialism and aims to scrutinize its implications for the possibilities of fair representation of Law. It bases its theoretical framework on Heideggerian ontophenomenology, without neglecting the contributions of Husserlian phenomenology, notably on intentionality. The social and democratic constitutionalism is presented as the normative framework of the work, which appreciates the confrontation between its assumptions and the consequentialist injunctions. From a theoretical construct woven from the economic analysis of Law, the apprehension of consequentialism by the brazilian legal discourse emerges as a servant to neoliberal economism. In an effort to prevent the full effectiveness of constitutional precepts, notably those demanding public investments, such as fundamental social rights, consequentialism aims to crystallize the process of applying the Law as what it is not, namely, the balance between expressive consequences of economically reducible costs and benefits. The normative contradiction between the current constitutional order and the phenomenon investigated by the thesis is confirmed due to the subversion of the structuring core rooted in the dignity of the human person and its subordination to consequential utilitarian thinking. In addition, the thesis shows, based on the Husserlian notion of intentionality, that consequentialism expresses the loss of the intentional relationship between the Law application discourse and the things that would be referred to by it, namely, normativity, its context of application and the participants in its implementation process, as it imposes the visor of the exclusivist gaze for balancing economicist consequences, preventing the fair appearance of the legal phenomenon. By advancing to the elucidation of the phenomenological genesis of legal consequentialism, the thesis reveals that it expresses the encrustation, in the field of Law, of the essence of modern technique, embodied in the challenging uncovering that essentializes constitutional normativity and human dignity as reserve funds to provide gains in efficiency, depending on the mode of the frame. The deconstructive opening for these historical processes to show themselves as such clears up the possibility of reuniting the paths of fair application of the Law, safeguarding the Constitutional Social and Democratic State of Law against the forces that try to undermine it.