Uma análise do ativismo judicial à luz da crítica hermenêutica do direito e seus desdobramentos sobre o artigo 315, §2º, do código de processo penal

Abstract

This dissertation consists of an analysis of judicial discretion from the Hermeneutic Critique of Law and its effects on criminal proceedings from the introduction of article 315, §2o, of the Code of Criminal Procedure by Law No. 13.964/19. The work is divided into two parts: a first part, which is intended to analyze the judicial discretion, which supposedly stems from legal positivism, and its relationship with neoconstitutionalism and judicial activism; and in the second, a study of the anti-crime package, specifically article 315, §2o, introduced by Law No. 13,964/19, and its consequences in the criminal process. The problem of this work is revealed in the following concerns: What is the relationship of article 315, §2 of the CPP, introduced by Law No. 13.964/19, with judicial discretion? What is the relationship between judicial activism, legal positivismo and judicial discretion? What relevant modifications, with regard to combating judicial activism, were implemented by the Anti-Crime Package? How can the Hermeneutic Critique of Law provide an answer to judicial solipsism? Thus, the objective of the present work is to analyze the phenomenon of judicial activism and its consequences in the Brazilian criminal process from the insertion of article 315, §2o, Code of Criminal Procedure from the Anti-Crime Package. Considering that the role of the Judiciary Branch has been increasingly relevant in the Democratic State of Law, from this dissertation it will be possible to verify, from the validity of article 315, §2o, Code of Criminal Procedure, the relevance of reasoning of judicial decisions and the impacts of judicial solipsism. The work carried out has as theoretical support the proposal developed by Lenio Luiz Streck, that is, the Hermeneutic Critique of Law, based on the unification of the theoretical positions of Gadamer and Dworkin.