O princípio da legalidade no direito tributário revisto: uma questão de hermenêutica

Abstract

Tax Law, while dealing with the relevant value of freedom, is a branch of law where the preservation of legal certainty proves exceedingly necessary. In this context, there are the legal principles that aim to restrict state power, among which the principle of legality is one of the postulates of greater importance. In Tax Law the principle of legality is specialized a ‘formal’ sense, and in a ‘typical’ sense, also known as the principle of ‘conceptual specification’. Therefore, in law enforcement or application, strict and textualist interpretation must prevail above legal discretion. Nevertheless, there are authors who advocate a more flexible form of interpretation of Tax Law, loosening the density rules in favor of giving interpreters greater margins of discretion. Given: the impossibility of conceiving the principle of legality in Tax Law without dealing with the question of the interpretation and application of the standard; the need to rethink the principle of legality in Tax Law, either because: i) the traditional theory does not answer modern criticisms that are leveled against it, either because: i) part of modern reproaches leveled against the traditional view are relevant, whether as a matter of evolution of society and of science itself, either because legal positivism, the philosophical basis that sustains the traditional perspective, does not develop an adequate theory of interpretation of the standard; and, on the other hand, the impertinence of most of the solutions proposed by modern theories that aim to review the principle of legality in Tax Law, once they: i) implode its basis, ignoring the stony historical path of its construction, and ii) most of the criticisms leveled against legal positivism, the philosophical basis that supports the traditional view, fall within unfounded rhetoric; we reach the goal of this thesis that is, therefore, to fill these gaps, by rethinking or reviewing the principle of legality in Tax Law within a hermeneutic or interpretive perspective, by means of a new legal and scientific formulation, that meets the needs of renewal of the traditional theory, but does not necessarily give in to reverting its logic and opening space for discretion. Besides the theoretical aim of this thesis, it also seeks to achieve a practical objective, by means of critical and comparative analysis of the French positive law - because of the strong tradition of the principle of legality in this European country - and of brazilian positive law, seeking to identify the ways of thinking of the doctrine and jurisprudence on the interpretation of Tax Law, highlighting trends, consistencies and inconsistencies of the interpretative practice of courts. By applying the planning law theory of Scott Shapiro, which plays the role of revisiting the traditional positivist and natural law theories, proposing an innovative theory of his own, that fills the gap left by the normative positivism while it develops a positivistic theory of interpretation, the aims of this thesis are met, once we can review the legality principle in Tax Law in an hermeneutical or interpretive perspective, through the application of theory to practice.