A (in)transparência dos direitos fundamentais: das origens aos limites da teoria discursiva em Robert Alexy

Abstract

The thesis addresses the issue of legal argumentation in judicial decisions that interpret and apply fundamental rights norms. This approach is taken out from the perspective of the discursive theory of Robert Alexy, an important contemporary German philosopher. The first chapter exposes some philosophical origins and foundations that support the basic structure of his theory, showing in details the relationship from the dichotomy between perfect and imperfect duties in Kant to the structural distinction between rules and principles. The second chapter performs a compiled reconstruction of the central elements of Alexy’s discursive theory, linking the theory of principles with the theory of legal argumentation, while addressing the relationship between law and morality in the author's thinking. The third chapter, in turn, brings the development of the philosophical and methodological discussion previously exposed a judicial case judged by the Federal Supreme Court, demonstrating not only the simplification of the reasoning used by the Constitutional Court, but also the limits of the discursive procedure presented by Alexy to ensure the rationality of legal argumentation. The thesis has as its basic purpose a general exposition of Alexy's discursive theory based on some of its philosophical foundations, taking as its guiding line the problem of judicial discretion and practical reflexes. In addition, it offers some critics to this proposal, pointing out three possible objections to this theoretical model, which correspond respectively to the three central components of discursive theory: theory of principles, theory of legal argumentation and the inclusive non-positivist concept of Law. The methodology used on the development of the college paper was taken out from extensive consultation and bibliographical review in specialized material appropriate to the theme. As partial results, from the philosophical reference adopted by Alexy, his discursive theory can offer important resources to face the problem of legal reasoning in judicial decision, including by incorporating rationalization criteria of moral arguments that enter on legal discourse, but still remains a considerable discretion space to determine the justification of judicial decision, in order that the result may vary due to different values and deadlocks, ratifying even antagonistic positions.