THE MONOCRATIC DECISION HANDED DOWN BY MINISTER LUIZ FUX IN ADI 6298/DF AND ITS CONFRONTATION IN LIGHT OF THE POINTS OF CONVERGENCE BETWEEN THE HERMENEUTICAL CRITICISM OF LAW AND THE NORMATIVIST GUARANTEE POSITIVISM

Abstract

Since the high degree of judicialization is a phenomenon typical of Contemporary Constitutionalism, the concern with the mechanisms for understanding and controlling the decision-making process becomes inseparable from the understanding of Law and legal discourse. And if classical legal positivism is no longer capable of responding to the problems of a society marked by a multiplicity of demands, it seems equally hasty to invest in argumentative theories, which, through the use of the ponderative technique, tend to pave the way for the old decisionism. On the other hand, it is possible to identify relevant elements for the search for limits to the decision-making power both in the reformulated shade of normative positivism, nicknamed guarantor and led by the Florentine master Luigi Ferrajoli, and in the Hermeneutic Critique of Law expounded by Lenio Streck. These are theories that, despite their differences, are close in their opposition to voluntarist bets in the context of jurisdictional decision-making. Based on this, this article is proposed to challenge the provisional and monocratic action of the Supreme Federal Court in Direct Action of Unconstitutionality No. 6,298 of the Federal District, through which the institution of the Judge of Guarantees in our criminal procedural system was suspended. The objective is to analyze, from a critical perspective, the (un)sustainability of the grounds used in the preliminary injunction granted by the Rapporteur Minister. Thus, it is proposed to determine to what extent the moral preferences of the decision-maker set the tone for the decision. And since the aforementioned decision seems to arise from the surreptitious incidence of argumentative theories based on weighing, of predatory corrosion of Law by morality, weakening of the normative force of the Constitution and in potential demonstration of the distorted use of jurisdictional power, we must, in the interest of epistemological constraint, suggest the present approach, with emphasis on extracting constant guidelines from normative guaranteeism and CHD to confront decisionisms to which constitutional jurisdiction may be subject. In terms of methodology, this research, of an analytical and critical nature, relied on a bibliographic and documentary review, and the topic's relevance derives not only from the fact that the decision under scrutiny has not yet been revisited by the Court's collegiate body, but, above all, from the overflow of problems of decisional uncontrollability that assume the leading role in the current legal debate.