A retórica constitucional e os problemas dos limites interpretativos e éticos do ativismo jurisdicional no Brasil

Abstract

The text intends to explain the theses suggested in the summary, that is, how the decoupling between text and legal decision brought by complex societies causes a pulverization of the ethical convictions and the decision-making instances, overloading law and, within law, the judiciary power. Moreover, in the context of a country that has the problems of complex societies, but fails to implement the solutions and institutions created to deal with them in the developed Western world, it aims to show that it is necessary to construct interpretative and ethical limits for a constitutional democratic jurisdiction in Brazil.Based on these theses, the central problems of philosophy of law and constitutional law can be summarized in three questions. The first concerns knowledge: how to detect what is to be called law and separate it from what is not considered law. The second deals with the ethical aspect of law: if its creation, interpretation and application are at the disposal of the governing power or if there are higher instances and criteria to judge it, in other words, if there is a distinction between law and justice. The third is methodological, about how philosophy of law should proceed: whether it has the function of describing how law appears empirically or of advising other people about what law should be, in the opinion of each philosopher