Um enfrentamento do subjetivismo particularista no direito a partir do repasse dos fundamentos do constitucionalismo de Barroso.

Abstract

It is a fact that the judiciary, nowadays, has obtained more and more space. However, this does not mean that judiciary is out of suspicion and that the judge is the faithful custodian of the transformations that humanity needs. It is not the judge or the judiciary who is the main responsible for the realization of democracy. Nor is the judge's conscience the best parameter for evaluative questions. It is that, from what has been called the Linguistic Turn, it has been reflected on issues that have always been central to human thought, from which one could certainly include law and ethics, taking into account another parameter. The point is that man understand himself and the world through language. Language would thus be the instance of expressiveness of the world. World and language would be two sides of the same medal. It is from it that man talks about himself, about the world and communicates. And as a reflexive dimension of which the human being presents itself as a rational animal, it is, therefore, a condition of possibility of rationality itself. Therefore, in that point of view would reside the possibility of overcoming an abyss developed by the modern western tradition between objectivism and subjectivism. That being said, in order to understand the issue of subjectivism present in the activist way of acting that has been verified in the brazilian judiciary, it was decided to reflect on the theoretical and philosophical foundations that are indicated by Luís Roberto Barroso, minister of the STF and a strong name for local neo-constitutionalism, a theory that has undeniably taken on the defense of this militancy of the judiciary in favor of a transformation for the better of society. The idea was to verify if the theoretical and philosophical presuppositions would authorize the particularist subjectivism present in the activism. The foundations indicated by Barroso and now reflected are: Postmodernity, the Critical School and a pretended overcoming of Positivism by Post-positivism. And what has happened from the critical passthrough on these theoretical bases is that what they reveal, contrary to the suggested subjectivist agenda, is the necessity of fomenting dialogical processes. And that the positivism that is supposed to be overcome is the mere technicism devoid of ethics.