Ideologia e interpretação jurídica: o direito do trabalho entre a crítica e a hermenêutica

Abstract

The present dissertation deals with judicial interpretation in Brazilian Labor Law, given the difficult relationship between the notions of ideology, subjectivity and legal discretion. Trying specifically to think about the repercussions of these three notions in the act of interpreting or deciding in Brazilian Labor Law, from the perspective of hermeneutic phenomenology, philosophical hermeneutics and critical theory of ideology. It is focused, in this context, on the problem of how the perception of differences between the meanings of ideology and subjectivism can help to prevent the practice of interpreting or deciding using legal discretion, thus avoiding the imagined plan that interpretations, hermeneutically appropriate or not happen mostly due an idiosyncratic interpretation, and in this way are subjectivist. It aims, in general, to understand, through the critical theory of ideology, from Adorno and Horkheimer to the young Habermas, and the hermeneutic phenomenology and philosophical hermeneutics of Heidegger and Gadamer, respectively, the relationship between the manifestations of the concept of ideology and subjectivism, relating them to the concept of legal discretion and the interpretation performed by the law. Particularly, this dissertation studies, initially, the concept of subjectivism from a general philosophical overview and prior to the historicising of philosophy, demonstrating its appearance in classical and modern metaphysics and how it relates to law and history after this procedure that grants them an unique dynamic. After that it studies the concept of ideology based on the movement of historicising of philosophy, guided by a historical period that begins with the Hegelian logic and its particular notion of critique, going to the critical theory of ideology, of the Frankfurt School, and its particular notion of dialectics. Next it relates the findings with the premises of hermeneutic phenomenology of Heidegger and Gadamer's philosophical hermeneutics, delimiting the convergences and divergences between both theories and ideology critique. Finally, it reflects all the previous research on the legal interpretation performed in Brazilian labor law, demonstrating the proximity of justice specialized in work with the ideological problem and its interpreters with the posture of critical theorists. In this manner, it highlights the drawbacks of interpreting or deciding based on ideologies or in a supposedly critical way, and the feasibility of assuming a posture based on the assumptions of philosophical hermeneutics, thereby, taking advantage of the debate established between Habermas and Gadamer on the pretensions of universality of philosophical hermeneutics against the critique of ideology. During this course, the dissertation uses the method of hermeneutic-phenomenological approach, operating at reduced construction and destruction of studied objects in order to avoid the transmission of unauthentic information. Also, it utilizes as methodologies of procedures: the historical method, necessary for the study of events, processes and institutions of the past, in order to verify its influences in today's society, the comparative method, useful for the study of the similarities and differences between the analyzed objects, and finally the typological method used to make statements about ideal interpretation modes.