Retórica erística, tributação e direitos fundamentais: a construção do relato vencedor na jurisprudência do Supremo Tribunal Federal em direito tributário

Abstract

The dissertation discusses the use of eristic strategies in judicial decisions in tax matters by the Brazilian Supreme Court. Therefore, it initially studies the constitutional tax system as a communicational system in which language is essential for the construction of norms and judicial discourse. From this perspective, two hypotheses are analyzed: in the first one, based on a rhetorical approach to law, combining the writings of Adeodato, Schopenhauer and other authors, eristics is understood as part of the strategic rhetoric, inseparable from the arguments of court decisions, without any prior axiological burden; In the second, we investigate the positions of some rhetoricians who understand eristic as “bad rhetoric”, as well as the ontological orientations that comprehends the connection between law and morality and the existence of only one (constitutionally) correct answer in which case, resulting in the (un) compatibility of eristic strategies as a means to reach it. To guide the study, we sought paradigm decisions in tax law issued by the Supreme Federal Court, to analyze, in their rationale, the adoption of eristic strategies by judges and the repercussion of such stratagems in the fundamental rights of the taxpayers and in the definition of public policies. At the end of the study, it was understood that the attempt to categorize the eristics strategies in the legal discourse is a rhetorical effort and that the existing classifications are insufficient, being unable to cover all the argumentative subtleties employed. Furthermore, the thesis was formulated that the eristic strategies, while inseparable from strategic rhetoric, are part of the tax legal discourse, do not have a previously established axiological burden and reaffirm the fundamental rights and the ideals of the Federal Constitution and the Democratic State of Law.