Pragmatismo jurídico, a ordem espontânea e a evolução das decisões do Supremo Tribunal Federal sobre direitos fundamentais

Abstract

The present work aims at the analysis of law as a spontaneous order, according to Hayek's doctrine, and its compatibility with legal pragmatism. Starting from the premise that the law has a changing movement, we proceed to study the dynamics of the change in the interpretation of legal norms. Such an approach can not be dissociated from neoconstitutionalism and moderate judicial activism. As a counterpoint, the study uses the currents contrary to judicial activism, which seek a limitation to the interpretive activity of the judge, focusing on the objection of democratic legitimacy. As an example of antagonism, Lenio Streck’s doctrine, called the hermeneutic critique of Law, is used. The latter is centered on doctrinal milestones that privilege the role of tradition in the interpretation and application of Law. It presents, then, the aporia of how to solve a case in which there is no consolidated tradition. The work then goes on to address a moderate activism. It is only with the understanding of the principiological nature of the norms of fundamental rights that one can understand the clashes confronted. Corollary of this nature, the idea of the Constitution as a frame allows the development of the discretion of the applicator of Law. The legal evolution of fundamental rights demands the adoption of a broad factual support, which allows the law to cope with growing and changing social demands, leaving to the concrete case the judgment to be carried out. It is with a functional interpretation that the above dynamics, allied to the logic of the reasonable, and a topical interpretation are concretized.