Analítica e hermenêutica: duas faces de uma mesma solução para a garantia da racionalidade na aplicação do direito

Abstract

The longing for the rationality of judicial decisions goes deeper in search of its legitimacy, especially in decisions of great repercussion and relevance, when the limits of the Judiciary are confused with the limits established for the Democratic Powers. Hermeneutics and Analytics, two different ways of seeing the law, are also shown as two distinct ways of seeing the legitimacy of law enforcement, in an attempt to design ways that allow some kind of control over the subjectivity inherent in any volitional act to decide. Within the scope of justification of decisions, theories of legal argumentation, very well condensed in the work of Manuel Atienza, appear as a mechanism for externalizing the reasons articulated in the field of consciousness. In the face of these, the hermeneutic critique of law, brought in the work of Lênio Streck from the philosophical hermeneutics of Gadamer, is raised, worried about the endorsement of indetermination that is practiced by considering enough an individual exercise of argumentation to the detriment of the true reasons of the decisions. Objections do not nullify or invalidate either of the two ways of seeing the law, but certainly must force them to rethink their deficiencies in a complementary relationship. The answer, in the sense of this work, is based on a dialectical argument, capable of allowing a better debugging of the premises adopted and, consequently, the approach of the so-called context of discovery