The overinterpretation of Medida Provisória 936: the judgment of ADI 6.363/DF and the prevalence of the right of interpreters over the right of texts

Abstract

This essay discusses the limits of the interpretation of the constitutional text from the perspective of the Hermeneutic Criticism of Law, using the notion of “superinterpretation”, formulated by Umberto Eco. The proposal consists of examining the judgment of the Precautionary Measure (MC) in the Direct Action of Unconstitutionality (ADI) nº 6.363 / DF, at the Supreme Federal Court, whose object was Provisional Measure (MP) n. 936/2020, which instituted the Emergency Program for Maintenance of Employment and Income and authorized the temporary suspension of employment contracts, the reduction of working hours and wages and other measures to reduce the social impacts of the spread of Covid-19. Is it possible for the infraconstitutional rule to establish a situation of wage reducibility beyond those provided for exceptionally in the constitutional text? The hypothesis of the essay is that, by failing to endorse the precautionary measure granted by the rapporteur, the Plenary of the Court incurred in overinterpretation that makes constitutional rights and guarantees vulnerable, thus contributing to the institutionalization of an exceptional labor right.