BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

4. A hermeneutic response to activism I propose hermeneutics in a sense that is strongly anti-relativist and anti-discretionary . To use hermeneutics in this manner, one must discern the two factors that will allow us to overcome the paradigm of the philosophy of consciousness. My theory addresses two Copernican revolutions that occurred in the twentieth century and that radically changed the paths of law and philosophy. In the legal field, the Copernican revolution of public law moved the legal system’s center of gravity. Instead of codes of private law, the constitutions now exercise the capillary function of the law. This radical change has also resulted in a methodological revolution: the traditional methods of private law , which were permeated by the philosophy of consciousness, were not capable of handling the new constitutional texts, which were designed to enforce a democratic order that, in addition to any solipsism, should lead to a public sphere and to an intersubjectivity that legitimatizes the acts of power by the State. Thus, another Copernican revolution has come into play. That is, we must take care of the so-called linguistic turn , which operates to redefine the role of language in the knowledge creation process and opens new avenues to discuss the method of law. In the wake of this transformation wrought by a linguistic turn (i.e., a linguistic- ontological turn ), 15 the hermeneutics of Hans-Georg Gadamer appeared. The Wahrheit und Methode clearly showed that the truth of the humanities (i.e., the sciences of the spirit) can be seen through art, history and language. Thus, Gadamer unleashed a sharp blow against the methodologism that predominated the epistemology of these sciences. This methodologism claimed that truth is ultimately opposed to the method. Rather than ensuring the objectivity of the interpretation process, the method represents the peak of subjectivity and eventually leads to relativism ( e.g. , in the legal field, the method leads to the question of balancing). Therefore, I posit that Gadamer’s objection to methodological relativism is echoed in Ronald Dworkin’s criticism to the discretionary power of judges. This criticism is implied in Dworkin’s debate with Herbert Hart. Thus, I present my proposal as an imbrication between Gadamer and Dworkin. Following Dworkin, who will speak of the only right answer, I propose that all citizens who live under the mantle of democratic government have a fundamental right to obtain a constitutionally appropriate response from the courts . However, my proposal does not establish a methodological procedure that ensures this response will occur. Rather, my proposal rejects any attempt to proceduralize the decision-making process. To discuss the conditions that comprise a constitutionally adequate response, we need to analyze these conditions under a decision, adjudication theory . This decision theory must successfully remove the misconceptions arising from the erroneous theoretical interpretations made by Brazilian constitutionalists and should be able to produce a rigorous process designed to justify the decisions that flow among the suspension of the interpreter’s pre-judgments (in the sense that hermeneutics should be understood in the following manner: they who decide on political issues have

15 In this sense, see STRECK, L. L.: Hermenêutica Jurídica e(m) Crise . 10 th . ed. Porto Alegre, Livraria do Advogado, 2011.

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