The new constitutional hermeneutics and the discriction of judicial decisions in concreteing fundamental rights
DOI:
https://doi.org/10.21527/2176-6622.2022.57.12219Abstract
The decadence of legalism from legal positivism caused the advent of legal post-positivism, proposing normative force to legal principles, giving rise to the emergence of neoconstitutionalism, in view of the need to guarantee the effective realization of fundamental rights. In view of this, a new constitutional Hermeneutics originates. These phenomena, therefore, empower the Judiciary and intensify judicial discretion. Thus, the objective of the present investigation is to analyze how the use of New Hermeneutics can cause excessively discretionary judicial decisions. Therefore, using the deductive method, through a bibliographic survey, it was performed a review of the doctrinal literature, looking at the historicity of the legal phenomenon mentioned until the advent of neoconstitutionalism and the emergence of a New Constitutional Hermeneutics within this new jusfilosofico paradigm. Then, the maxim of proportionality of Robert Alexy is analyzed as one of the interpretative methods originating from neoconstitutionalism, later demonstrating that the discretionary use of principlist hermeneutics is propitiated by a failure in the application of the weighting theory, which provides the judge the free will to judge and also as a result of a misapplication of the maxim of proportionality by the Brazilian judiciary. Finally, it appears that Dworkin's Theory and the Critical Theory of Lênio Streck, based on Philosophical Hermeneutics and on the integrity of Ronald Dworkin, are shown as possible solutions to the problem that presents itself, in order to overcome the discretion in the materialization fundamental rights.
Keywords: Philosophical Hermeneutics; Neoconstitutionalism; Discretion.
Downloads
Published
How to Cite
Issue
Section
License
By publishing in the Revista Direito em Debate, authors agree to the following terms:
Articles are licensed under the Creative Commons Atribuição 4.0 Internacional (CC BY 4.0), which allows:
Share — copy and redistribute the material in any medium or format;
Adapt — remix, transform, and build upon the material for any purpose, including commercial use.
These permissions are irrevocable, provided the following terms are respected:
Attribution — authors must be properly credited, with a link to the license and indication of any modifications made;
No additional restrictions — no legal or technological measures may be applied that restrict the use permitted by the license.
Notices:
The license does not apply to elements in the public domain or covered by legal exceptions.
The license does not grant all rights required for specific uses (e.g., image rights, privacy, or moral rights).
The journal is not responsible for opinions expressed in the articles, which remain the sole responsibility of the authors. The Editor, with the support of the Editorial Committee, reserves the right to suggest or request modifications when necessary.
Only original scientific articles presenting research results of interest, not previously published or simultaneously submitted to another journal with the same purpose, will be accepted.
References to trademarks or specific products are intended solely for identification purposes and do not imply any promotional endorsement by the authors or the journal.
License Agreement (for articles published as of 2026): Authors retain copyright over their articles and grant the Revista Direito em Debate the right of first publication.
