Jurisdição e método: limites processuais e possibilidades hermenêuticas de controle das decisões

Abstract

I discuss the methods of controlling the judicial decisions. My theme is the philosofical grounds of judicial statements about process. My objective is to reconcile the critique of legal formalism and the defense of procedural garantees. To that matter, I proceed: systematizing the major methodological schemes of the process; studying the history of adjudication in the pre-modern and modern law, linked to the subject-object scheme (state of the question); comparying the contemporary perspectives on the paradigm of intersubjectivity (state of the art); exploring, after all, a Procedural Science able to reorganize the philosophical contributions of Discourse Theory of Law and Hermeneutical Critique of the Law. The method of approach was hermeneutic-phenomenological: more than synthesize the positions, my concern was to understand what became clear, the identity that manifests among these differences. As a result, I came to the following systematization: monological method (inquisitorial process), dialogical method (discursive Theory of Judicial Procedure) and a control of judgments beyond the method (Hermeneutical Critique of Law). In the history of procedural law, I saw the transition of the ordeals to the rationalist process as a shift from objectivism to subjectivism, and the process as modern method of adjudication. In the comparative analysis, I saw the relationship between the judicial control emphasized by Discourse Theory and the one enphasized by Hermeneutical Critique of Law as "complementary totalities". I was able to reorganize it all in the following manner: Theory of Decision without Theory of Process is blind; Theory of Process theory without Theory of Decision is empty.