Contribuições da hermenêutica filosófica à teoria da decisão judicial na perspectiva da linguagem compartilhada: uma questão dialogal de perguntas e respostas

Abstract

The reflections brought about in this work have the scope of following, in a philosophical way, the historical trajectory of hermeneutic science and its applicability in the field of the interpretation of law, more especially of the judicial decision. Furthermore, the proposal embraces the phenomenological study, together with the Socratic-Platonic question-and-answer dialectic, in order to make it more evident that the art of asking greatly contributes to the discovery of truth in the hermeneutic moment of application, in which questions debated in the judicial process are finally resolved by a state act endowed with impartiality. Always putting into play the historical constitution of Dasein and its condition of being abruptly released into the world, according to Heidegger's doctrine, this investigation runs, phenomenologically, through the field of disposition articulated by the historical meanings of the entities that come to the speech, trying to show how these determine, in temporality, the possibilities of the ways of being of the judge's interpretation. On the other hand, it is intended to unveil the truth of legal phenomena, in their historical referential network, therefore, in a certain temporal context of the world, whose means of movement we call shared common language. Still taking advantage of the reading of Gadamer, in his work Truth and Method, we proposed to test whether, unthinkingly, certain repetitive speeches, reiterated modes of speech and arguments rooted in the legal tradition cause obscuring the meaning of the texts, transmuting the practical adequacy of the implemented rule every time a decision is rendered. The analysis framework undertaken has, finally, the transcendental test of Kant's categorical imperative, as a moral hermeneutic support, aiming, ultimately and a priori, to unveil the reasonableness of the consequences produced from the decision made. Therefore, the intention of the study addresses, in its hermeneutic totality, what appears to the judge in its most authentic form, suspending harmful prejudices and unveiling the metaphysical effects caused by analytical divisions and splits in the context of judicial interpretation, especially in view of the expectation the realization of fundamental rights in the horizon of the Democratic Rule of Law.