Onde habita o juiz Hércules? uma aproximação entre teorias da interpretação e questões institucionais

Abstract

Theories of legal interpretation have been challenged to deal with the concrete situation of judges, faced as members of complex institutions with various limitations. A fundamental debate on this issue involved two of the greatest legal thinkers of our time, Ronald Dworkin and Cass Sunstein. The first tried to show that the requirements for a correct understanding of law were unavoidable, arguing that the judges should decide seeking for a principled integrity. The second pointed to the risks of judges detour on moral theories, recommending that they decide in a shallow and narrow way, whenever they could not judge with confidence. The debate progressed, bringing up the best of each author. Both refined their criticisms and reached surprising convergences. Therefore, we need to ask: how to evaluate the arguments exchanged by the authors, reorganize the available knowledge and, from this point, sketch the fundamental guidelines for a vision of law that properly accommodates the theory of interpretation and institutional analysis? In short: what are the coordinates for a small institutional hermeneutics? That was the problem I dealt with in this thesis. To do so, I proceeded in the following manner in each chapter: 2) I presented a characterization of Ronald Dworkin's central theses, focusing on his theory of legal interpretation; 3) I presented a characterization of Cass Sunstein's central theses, focusing on his institutional concerns about the judicial decision; 4) I reconstructed the Dworkin-Sunstein debate, analyzing critically their arguments and defending a creative appropriation of their legacies - that is, an authorial proposal in continuity with the theoretical series inaugurated by Dworkin and Sunstein; and, 5) I compared the results obtained with another proposal for the continuation of the debate, the (anti) institutional theory of interpretation by Adrian Vermeule, disputing the peculiar type of empiricism that it represents in face of the hermeneutical tradition. As a result, I sketched some guidelines for an interpretiveinstitutional model, proposing that the theory of law as integrity should be assumed as a basic field, and that it should be developed from three points raised by Sunstein: an extension of the doctrine of local priority; the defense of a model for exposing collegial decisions; and the observation of the emergence of new institutional designs, with major implications for theories of legal interpretation. I submitted this view to a dialogue with the perspective of Adrian Vermeule. This author has defended that the importance of normative theories must be diminished, focusing on a comparison of the effects generated by different interpretative models, through institutional analyzes under the variables of judicial capacities and systemic effects. I recognized the advantages of institutional mediation that it proposes for normative models. However, I pointed out deficiencies in the foundation of some of his theses, in their intention to dismiss the normative debate and appeal to an empirical foundation under bounded rationality. Finally, I outlined five metatheoretical coordinates to bring these topics together in a productive way: rigorous empirical foundation; theoretical-normative justification; methodological humility; thematic balance between interpretation and institutions; and historical perspective.