Open Access BASE2021

Interpretative skepticism and constitutional interpretation: a criticism of Brazilian constitutional court decision

Toribio Leão, Martha

Open Access

Abstract

This paper is a critical analysis of a recent case decided by the Brazilian Constitutional Court, which can be considered as paradigmatic of the current approach of Brazilian case law with reference to constitutional interpretation. The case regards the unconstitutionality of a statute provision which allowed the enforcement of penalties pending a second instance appeal and therefore before res judicata. This analysis aims at discussing the concept of constitutional provisions and legal interpretation theory as well as the legal arguments applied in these cases. The approach endorsed by the Court will be argued from both a theoretical point of view and a political standpoint, in order to outline its inadequacy and conflict with the Rule of Law doctrine.

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