O desenvolvimento judicial do direito: construções, criatividade interpretativa e técnicas manipulativas

Abstract

The present dissertation is a study about the judicial development of law. The study's aim is to demonstrate that creativity is an inherent and inescapable aspect of jurisdiction. In that light, the first pursued objective is to analyse the concepts related to judicial creativity, which are those of interpretation, construction and manipulation. Theories that deny the judicial creation of law are also analysed and refuted. The study argues that the admission, by the judiciary power, of the creative nature of it's decisions is a requirement of judicial candor. The second objective is to investigate Hans Kelsen's theory that describes Courts that realize judicial review as negative legislators. The incongruencies of this claim with contemporary constitutionalism are examined, as well as the flawed fashion in which the Federal Supreme Court of Brazil applies it in it's case law. The third objective is to investigate the descriptive and normative aspects of the manipulative decisions. Proposals concerning the normative grounds and limits of application of this technique are formulated. The admissibility of additive, reductive, additive of principle decisions is defended, while the substitutive decisions's admissibility is rejected, being recommended the application of necessity measures in it's place.