Reabilitação dos preconceitos contidos nas máximas de experiência na valoração probatória, e dos constrangimentos hermenêuticos a que se submetem

Abstract

With the advent of the Constitutional State of Law, neoconstitutionalism emerged as the paradigm of the normative force of the Constitution. Henceforth, the fundamental rights and guarantees, portrayed in the constitutional principles, for the ultimate achievement of limiting all State powers, begin to exercise normogenetic, integrative, and hermeneutic functions, promoting the “constitutional filtering of the Law”. Thus, neoconstitutionalism provides conditions for the development of post-positivism, breaking this with the belief of umbilical association between the text of Law and norm. Through the application there is the recovery of concrete in hermeneutics. This starts to be guided by the normative concretization. So, in the exercise of jurisdiction, the decision-making act brings together a single cognitive element of the interpretation, application and decision of the Law, with the grounds for the judicial decision being the place for assessing its legitimacy. However, given the fusion between the question of law and the question of fact in the process, the recognition of the evidence assumes exponential importance for legal hermeneutics. This is because, in reference to the framework of the means of evidence, in assessing their credibility or ability to prove the fact by proving, by motivated convincing, extra-normative elements enter the judge's understanding. They are the maxims of experience in the process as the intersubjective sharing of prejudices contained in the historicity and existentiality in which the magistrate is immersed. However, the prejudices contained in the maxims of experience cannot veil the truth in the process. They are an opening to understanding, not an ideological closure. Thus, the horizon of Justice dictated by the Constitution enters, as a hermeneutic constraint, as a criterion of axiologically external control of the discretion of the declarative statement on the evidence in the judicial decision.