Análise das mutações constitucionais à luz da crítica hermenêutica do direito

Abstract

Under the argument of the search for the effectiveness of constitutional norms, especially those that define fundamental rights, the interpretative practice of the Federal Supreme Court has produced many constitutional mutations, which can be traced back to German law. In Brazil, however, there is an apparent lack of identity in its own legal theory, especially in regards to judicial decisions. Many have questioned whether these decisions have an activist tendency, especially from the point of view of Hermeneutic Criticism of Law. Moreover, the purpose of this paper is to analyze the institute of constitutional mutation from its historical elements, in order to understand its legitimacy and adequacy in the Brazilian legal system from the philosophical foundations that guide the theory of Hermeneutic Criticism of Law, in opposition to the interpretative parameters of the Federal Supreme Court. Likewise, exploratory research and literature review was used for the same reason. This paper concludes that the production of constitutional mutations derives from a decisionist/discretionary posture of the Supreme Court, configuring activism and hurting the precepts of the Democratic State of Law. Moreover, from the point of view of Hermeneutic Criticism of Law, it is not a legitimate institute.