A ressignificação hermenêutica da concepção de fato jurídico de Pontes de Miranda como condição de possibilidade para a juridicização do fato nanotecnológico: uma abordagem feita sob o recorte dos possíveis riscos produzidos pelos nanoalimentos com prata

Abstract

The complexity involved in the nanotechnologies can separate this theme from the juridical area. Law has some problems to face the unknown and to foresee the consequences of the future damages. This happens, because the classification of what is juridical is behind the facts, which is based on legal principles. Therefore, the present scenario demonstrates the necessity of reframing the current conception of the legal fact, which is a concept that, in Brazil, was created by Pontes de Miranda. Thus, this thesis aims to suggest a hermeneutical ressignification of the legal fact, proposed by Pontes de Miranda, and to allow the jurisdicization of the nanotechnological fact, through the adoption of a new model of interpretation and a new conception of juridical rule and incidence. The jurisdicization, focused on this research, is related to the human being’s care, who is the essence of the nanotechnogical, considering its possible risks, particularly nanofoods. The brand new hypothesis is that this jurisdicization can be feasible through the substitution of the method by the philosophy, based on the hermeneutical bases of Heidegger and Gadamer as well as the normative revolution, as regulatory frameworks to nanotechnologies by Engelmann. Considering the method, it is adopted a phenomenological-hermeneutical approach, whose investigation considers the subject in this essence, but not, as something that is separated of the study, that is analyzed by a subject that is not affected by the consequences of these transformations. Taking into account the procedure methods, we used the historical, comparative, as well as case studies, and the technique, the bibliographical one, analyzing and reviewing the national and international doctrine about the theme. It was also carried out a documental research, which is centered on the suggestions of regulatory frameworks in Brazil, the United States of America and European Union, as well as the initiatives to reduce the risks, suggested by international, governmental and non-governmental organizations. Data were collected about nanoproducts, especially food products, in which nanosilver is used that has already been produced and traded in the world. So, it was applied, as a resource, the inventory of the Emergent Nanotechnologies Project, and the research about the list, registered on October 2013, points out 41 products related to the following categories “food and beverage”, in which “nanosilver” was applied. Considering the result of the current study, we verified that it is possible to reframe the hermeneutic Pontes de Miranda’s hermeneutic, related to the conception of the legal fact, in the following aspects: a) the substitution of the subsuntive-deductive model of The Theory of the Legal Fact for the circular model, suggested by the philosophical hermeneutic, that allows a better interpretation of each case, taking into account the multiples aspects of nanotechnologies; b) the formation of a pre-understanding about nanotechnology, structured by the tradition of the Human Rights and Federal Constitution, can be complemented by other normative texts as well as international documents that allow the dialog between many interpreters and actors, who belong to nanotechnology revolution. Fulfilled these conditions, the jurisdicization of the nanotechnological fact may happen independently of the fact supported foreseen in a legal rule, however, through a pre-understanding that is build up to the human being in the world, when, besides recovering the tradition, it also can access the nanotechnological world, changing it in a human being in the nanotechnological world.