Analysis of constitutional changes in the light of the hermenutical criticism of the law

Abstract

Under the argument of the search for the effectiveness of constitutional norms, especially those defining fundamental rights, the interpretative practice of the Federal Supreme Court has produced the so-called constitutional mutation whose roots are in German law. In Brazil, however, in which, apparently, there is a lack of an identity in terms of legal theory, especially the decision, it was questioned whether such action has an activist character, especially under the prism of Critique Hermeneutics of Law. The aim of this study was to analyze the institute of constitutional mutation based on its historical elements, in order to assess its legitimacy and adequacy to Brazilian legal practice, based on the philosophical foundations that guide the Critical Hermeneutics theory of Law. For that, it was used exploratory research, involving a bibliographical survey and the historical method. It was concluded that the production of constitutional mutations arises from a decision-making / discretionary position of the Federal Supreme Court, configuring activism and violating the precepts of the Democratic State of Law. Under the prism of Critique Hermeneutics of Law is not a legitimate institute.