Pragmatismo jurídico e a execução da pena após a condenação em segundo grau

Resumo

A few judges have been called pragmatic. But what does it mean to adopt a pragmatic view of jurisdiction? What are the distinctive features of this adjudicative model? In this work, the author intends to conceptualize legal pragmatism, unravel its pros and cons and, in the end, examine its application by the Federal Supreme Court of Brazil (STF). The work is divided into two parts. In the first, the author presents the theoretical premises in which the second will be grounded. Based on the debate between H. L. A. Hart and Ron Fuller on the interpretation of a rule, he introduces three models of adjudication: formalism described by Frederick Schauer, integrity advocated by Ronald Dworkin, and legal pragmatism outlined by Richard Posner. He then addresses the main objections to the pragmatic model, as well as its responses to these criticisms, and explores legal pragmatism beyond Posner’s theory—until its landing in Brazil. In the second part, the author investigates how legal pragmatism can be seen in action in the jurisdiction of the Brazilian Supreme Court, analyzing seven decisions on the enforcement of a criminal sentence after the judgment of an appeal. The Court examined the issue for the first time in 1991; overruled its understanding in 2009; a few years later, in 2016, the Court overruled the overruling; and, in 2019, overruled the overruling of the overruling. At the bottom of the debate are 13 words, no more than 77 letters (in Portuguese), of a simple provision, article 5, item LVII, of Brazil’s Federal Constitution: “no one will be found guilty until the final judgment of a criminal sentence”. What are the limits of textual interpretation? Should reading be retrospective or prospective? What role do practical consequences play in the exercise of jurisdiction? The author intends to answer these questions in order to evaluate legal pragmatism in Brazil’s Supreme Court.

Ficha do documento

Tipo

Dissertação

Ano

2022

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso restrito

Identificador

oai:repositorio.fgv.br:10438/32797

Palavras-chave

Legal pragmatismJurisdictionPractical consequencesFederal supreme court of BrazilCriminal sentence enforcementPragmatismo jurídicoJurisdiçãoConsequências práticasSupremo Tribunal FederalExecução da penaDireitoDireito - FilosofiaPragmatismoJuízes - DecisõesExecução penal