Para além do garantismo: uma proposta hermenêutica de controle da decisão penal

Abstract

Assuming that, in Brazil, the theory of criminal justice is not consistent, the present work argues that the epistemology of juridical garantism, held by Luigi Ferrajoli, has limitations that separate it from the practical world, and therefore hinder the development of a theory able to limit the power of the criminal judge. Although the theory of guarantism gives special attention to the interpretive relativism, by proposing a technique of language's formalization to reduce situations of uncertainty, it still admits an insuppressible margin of discretion (always pro reo). The purpose of this thesis is the overcoming of this semantic model of perception of Law by a hermeneutic understanding of the juridical phenomenon. Based on the philosophical hermeneutics (Hans-Georg Gadamer) and the theory of Law as integrity (Ronald Dworkin), this research endorses the hypothesis that the Law is not the result of findings (conventionalism), neither of inventions (pragmatism). In other words, Law is not written somewhere in the past, neither is what the judges think it is. The Law is an interpretive social practice, it is the result of the best possible moral argument. By articulating relevant concepts of Gadamer (such as prior foundations of the understanding, merging of horizons, tradition, dialogue, experience, finitude and language) with the analysis of juridical integrity of Dworkin, this research - without the pretension of correcting Ferrajoli‟s garantism, but to overcome the eventual limitations of a semantic theory of Law - presents the hermeneutics as a privileged path to constrain the criminal decision.