Dosimetria da pena à luz da hermenêutica na matriz fenomenológica

Abstract

This paper is dedicated to an analysis of the phenomenon of penalty dosimetry in criminal proceedings, based on the legal hermeneutics in the phenomenological matrix, exploring the limits of objectivity and ways to contain the influencing elements of the judge as an interpreter of the law. Phenomenology emerged as a means of investigating consciousness and the process of comprehension, highlighting the theories of Edmund Husserl and Hans-Georg Gadamer, which served as theoretical references to demonstrate the need for the formation of a conscience by the judge, its hermeneutic situation and the establishment of a dialogue between its previous conceptions and the phenomenality of the concrete case, where the intentionality of consciousness has repercussions in its action and the hermeneutic circle is highlighted as an element of phenomenological elucidation of knowledge and interpretation, by the logic of question and answer. It also investigates the influences of psychological elements and personality traits of the judge, as elements of subjectivity and understanding and interpretation of the penal norm. Given the discretion conferred by the law to the judge at the time of setting the penalty, it was intended to investigate the implications of a hermeneutic aim to propose the improvement of the dosimetry of the penalty, seeking the just decision. It is concluded, after the investigations carried out about the possibilities and conditions of the interpretation and application of the laws, proposed by the Phenomenological Hermeneutics, by the conformation of a new hermeneutic paradigm in which it is possible to reduce the degree of subjectivism of the judge in the application of the law. criminal law, especially in the phase of penalty dosimetry.