Jurisdição Constitucional e hermenêutica: o avanço dos métodos concretistas e pragmático-consequencialistas no Brasil

Abstract

The exercise of constitutional jurisdiction in Brazil has changed in recent years due to the advance of concretism and a pragmatic-consequentialist hermeneutic model, mitigating an abstract approach and a deductive-syllogistic methodology. In this context, the mixed formula of constitutionality control was redefined, in which diffuse control and concentrated constitutionality control were adopted in parallel, in which, respectively, any judge or court can attest to the constitutionality of norms in a concrete case, or in which the Federal Supreme Court attests to the unconstitutionality of the rules in the abstract. Now, constitutional jurisdiction incorporated the evolution of modern hermeneutic instruments and methods, with extensive use of alien institutes, despite several conceptual controversies, making the jurisdictional exercise unprecedented. In this sense, even though Brazil presents a model of action in a parallel thesis of constitutionality control, the hypothesis put forward in this thesis is that the constitutional jurisdiction has adapted nowadays with grouped judgments of concentrated constitutionality control actions and appeal incidents, with maturation of the writ of injunction, application of the constitutional change and use of instruments such as the amicus curiae. And, precisely, this adaptation resulted from the concretist influence, as in Konrad Hesse and Friedrich Muller, and the pragmatic-consequentialist, as in Richard Posner and Cass Sunstein. A hypothesis confronted in the work from a theoretical point of view and from an empirical point of view, with the analysis of some more recent decisions of the Federal Supreme Court, which demonstrate the evident hybrid influence of the North American and German models of constitutional jurisdiction, with an active role of the Federal Supreme Court, which has been raising debates around the institutional dialogue and the violation or not of democracy, as in the studies of Jeremy Waldron and Stephen Holmes.