Crítica à decisão judicial na trilogia estrutural do processo: o processo como linguagem no quebramento da autoridade jurisdicional e na concepção da autoridade hermenêutica

Abstract

This dissertation explores the ontology of the judicial decision conceived in the structural trilogy of the process, which best suits the Democratic State of Law and the Age of Philosophy of Language. The research is anchored in the critical proposal to deconstruct the conceptual trinomial of the general theory of the process, composed of the jurisdiction, the action and the process under the reference of the legal decision in contemporaneity, presenting the evolution and the historicity of this institute, together with the necessity of its reclassification, and with that, to demonstrate the incompleteness of the signs and the meanings of the process in accommodating the decision in that context. Subsequently, the work promoted a process vision as language and cultural phenomenon, in the best conformation of the process to the ontological-linguistic turn, re-adapting this institute, from method to language, including improving the concepts of reasoning, contradiction and due process of law. In the end, it was proposed to propose a model of judicial decision that dissolves the excessive authority of the jurisdiction according as the new signs and meanings of the process. Theoretical sources for research are based on philosophical works and the general theory of law on hermeneutics, in the national and international procedural literature, and on bibliography dealing with the theory of process and philosophical hermeneutics, both close to interpretation and judicial decision in the Law. The problem lies in the lack of suitability in the procedural model that accommodates the decision in the context of contemporaneity, since such a model allows arbitrary and undemocratic excesses of the jurisdictional authority in the fluidity and the realization of the right in, and by the process. In relation to the hypothesis proposed, the study assumes that for a new hermeneutic and democratic position of the juridical decision before the structural trilogy of the process, a new positioning of the judicial decision as a construction developed in and by the process, replacing the subjective authority by argument and participation. To explore these elements, the theoretical references were: philosophical hermeneutics, garantism and the structural trilogy of the process in accordance with the new foundations of contemporary civil process, mainly from the point of view of Gadamer (1997, 2002), Heidegger ( 2005), Ferrajoli (2002), among others. The methodology used was the hermeneutic phenomenology that made it possible to conceive the investigation by means of a critical posture, with depth and comprehensiveness, considering the historical and cultural circumstances of the investigated phenomenon, and in that sense, allowed the construction of a critic to the status put and unveiling punctual epistemological and theoretical changes that go against the way the problem is revealed in the phatic world. The results of the research pointed out elements that should be incorporated into the general theory of the process in order to better conform the judicial decision to the hermeneutic revolution of law and the development of the Democratic State of Law.