Sobrevivências do nazifascismo na teoria jurídica contemporânea e seus reflexos na interpretação judicial brasileira

Abstract

This paper reflects upon the persistence of Nazi Fascist jurisdictional models in contemporary legal theories, briefly comparing the proposals of authors such as Wolf, Larenz and Schmitt to Dworkin and Alexy. It aims to demonstrate the authoritarian and radically non-democratic character of certain theoretical constructions that support the judges’ performance, especially in Brazil. For this purpose, three emblematic judicial decisions of 2016 are analyzed, in which the characteristic elements of the legal Nazi theory, uncritically accepted by the current theory of law, are demonstrated, such as the disregard for the legality, the personification of the community into the judge and the appeal to social values of order taken as objectives. The methodology used involves the analysis of original works by Nazi and contemporary jurists, as well as the case study of Brazilian jurisdictional decisions.