O intersubjetivismo na construção de sentido das normas jurídicas

Abstract

The dissertation addresses the way to achieve the meaning of norms in judicial decision by three perspectives: (1) the objectivity of a right answer; (2) the larger degree of subjectivity of the judge and (3) the intersubjectivity, which assume the existence of dialogues for the construction of understandings. The goal of the research is to reconstruct the philosophical-theoretical base for the discussion about interpretation and application of juridical norms in judicial decision starting from the hypothesis that is more suitable that judicial decisions be built intersubjectively. The method to confront this hypothesis is dialectic and passes through several objective, subjective and intersubjective theories of decision, as well as distinct epistemological perceptions of these positions. The relevance of the research shows itself in the recent critics to judicial activism and the trend of increased number of monocratic decisions, topics that grow in importance because of the interpretation spaces opened by the current perspective of fundamental rights. The first section of the development presents, in a historical-evolutionary perspective, the clash between objective and subjective currents from jurisprudence; the second, in its turn, approaches the intersubjectivity in the construction of judicial decision, in opposition to objectivity and subjectivity with source from jurisprudence and epistemology; and the third, lastly, presents the considerations extracted from the resulting synthesis of the dialectical process. The main conclusions are that intersubjectivity has objective and subjective limits, which cannot be suppressed, just mitigated, so the hypothesis stands partially refuted. However, anyway, the promotion of intersubjectivity in the construction of the meaning of norms, made in the judicial decision, by means of an effective voluntary dialogue, is essential to fulfill the goal of the law, as well as to achieve democracy. Besides that, the work reveals the place of acting and the larger importance of intersubjectivity in the current setting of fundamental rights, in which there are more opened spaces for the interpretation of juridical norms. In this way, the result constitutes the theoretical basis for the building of democratic theories of judicial decision.