Desmistificando a ideia de limite literal uma abordagem teórica antiessencialista das bases e funções da literalidade no discurso jurídico

Abstract

This dissertation aims to investigate what constitutes the basis of literalism and what is its role in legal discourse, when the notions of an interpretive truth are removed. This question, philosophically grounded, is related to the legal practice by the controversial and reiterated positions of judicial decisions involving the notion of literal meaning. Part of the jurisdictional pronouncements subscribes to literalism as an insurmountable limit for decision making. On the other hand, some decisions signal the possibility of overcoming it and there are even those who question its objective existence. Faced with these issues, the research, at first, looks for a foundation in the theories of argumentation and pragmatics to demonstrate that literalism is supported by the rules of use of words, coined in social practice, and that adapt and change according to the life forms. In this sense, literalism is plastic, but it maintains a secure foundation in the rules of use. In a second moment, this dissertation demonstrates that this dynamism of literalism does not render its role innocuous, building elements to signal its functioning as a strong argumentative burden for those who intend to challenge it. In other words, literalism is not a real limit. However, it works by imposing on the interpreter the development of plausible arguments to justify a decision outside its limits. Thus, the research reaches a moderate relativist path to literalism, which is important for thinking about current ways of equalizing legal security and facing new social conflicts.