Gadamer e a constituição: o diálogo hermenêutico entre o objetivismo e o subjetivismo

Abstract

This study aims to achieve an approximation betweenphilosophical hermeneuticsand the Theory of the Constitution,supported in the works of Hans-Georg Gadamer, using the model of the hermeneutic dialogue not only in order to develop the analysis, but also taking it into accountin order to create opportunities for the understandingof objectivism and subjectivism in the Science of Law. Gadamer develops critical concepts to the objectivist and subjectivist models of science. Combining the hermeneutic dialogueproposed, through some categories of the Theory of the Constitution, it is possible to observe a fusion of horizons between the ontology of philosophical hermeneutics and constitutional grammar. In relation to the Science of Law, it can be seen that Kelsen deepens the positivistnormative and objectivistConstitution, within a formalist matrix, and Schmitt consolidates a subjectivistdecisionist and voluntaristtradition,both perceptions with rationality claims of the modern science to take effect in the constitutional jurisdiction. Some ambiguity between the objectivist and subjectivist currents can be observed in some contemporary authors. In Gadamer, a new act inthe hermeneutic dialogueis revealed as applicable to the Constitution, avoiding solipsism in the construction of the Science of Law and revealing objectivist and subjectivist excesses, as well as their scientific concepts applied to law. At last, the overcoming of the traditions that are expressed in the understanding of the Constitution is proposed as the approach betweenphilosophical hermeneuticsand the Theory of the Constitution will have developments if: firstly, the role of language, as a medium of language, gives rise to the overcoming of the dichotomy between objectivism and subjectivismfound in the traditional understanding of the Constitution; secondly, the hermeneutic dialogue constitutes horizon in the experience of the subject's awareness in conflict resolution asan understanding for a constitutional grammar; thirdly and lastly, the inauthentic understanding of the discretionarity of the ontology oflegal decision-making of abusivesubjectivist decisionism is unveiled.