By DAVID R. MARTINS*

The Dworkinian view of law offers a powerful lens for understanding the role of the STF in the Brazilian legal system

This article examines Brazilian constitutional law from the perspective of Ronald Dworkin's thinking, focusing on concentrated control of constitutionality and the role of the Supreme Federal Court (STF). Based on the work Taking rights seriously (1977), we seek to identify the influence of Dworkinian interpretativism in the decisions of the STF, challenging the predominance of positivism in the national legal system.

By adopting this approach, the study proposes a more flexible and morally grounded view of law, highlighting fundamental rights as dynamic elements that can be adjusted to social reality. Ronald Dworkin's interpretivism, which values ​​constitutional principles and values, allows us to understand the STF's decisions as part of an interpretative practice that sees the Constitution as a living document.

The emphasis is on the relevance of morality in constitutional interpretation, especially in matters that affect individual and collective rights. In this way, the aim is to demonstrate how the STF not only applies norms, but also interprets the Constitution based on principles, contributing to a more inclusive and humanized legal system.

“It’s the stick, it’s the stone, it’s the end of the road…”. These words from Tom Jobim, the most complete of MPB artists, and Elis Regina, the “Pimentinha”, in March waters can be read and interpreted as a metaphor for the incessant search for meaning in legal interpretations. The “end of the road” is not just the end, but the construction of new paths based on a deep understanding of the Constitution. Law, like music, is a composition that, more than its notes and words, involves what is between the lines, in the pauses and in what is beyond the obvious.

The criticism of Ronald Dworking on positivism

Ronald Dworkin (1933-2013), professor of law at Yale and successor to HLA Hart at Oxford, established himself as one of the most influential legal philosophers of the XNUMXth century, being notorious for his criticism of legal positivism. In Taking Rights Seriously (1977), presents a definition of positivism, questions its theoretical structure and proposes an interpretivist approach to the dilemmas of the philosophy of law. His main objection to positivism lies in the conception of law as a mere system of rules, arguing that, in complex cases, the jurist must also resort to principles and policies (Dworkin, 2002, p. 36).

Ronald Dworkin criticizes the positivist thesis of consensus on the foundations of law, represented by the so-called “semantic sting” (semantic sting), arguing that this approach does not adequately explain theoretical disagreements in law. To illustrate his theory, he analyzes paradigmatic cases such as Riggs vs. Palmer (1889), in which the principle that “no one can benefit from his own wickedness” (Dworkin, 2002, p. 37) prevailed over the absence of an explicit rule prohibiting inheritance by a murderer. This example demonstrates that the application of the law is not restricted to the literal interpretation of the rules, but also requires the consideration of moral and legal principles.

Based on this, Ronald Dworkin differentiates rules from principles: rules have a rigid and binary application (“all or nothing”), while principles function as argumentative reasons that guide legal decisions and can be weighted according to the context. Furthermore, while contradictory rules are mutually exclusive, conflicting principles can coexist and are resolved by assigning weights according to their relevance in the specific case (Dworkin, 2002, p. 39-43). Thus, his interpretative proposal rejects positivist rigidity and emphasizes the moral dimension of law.

The proposal for Ronald Dworking

Ronald Dworkin, when criticizing legal positivism, proposes a theory capable of incorporating principles into the philosophy of law. His approach is deepened in A matter of principle (1985), where he develops the relationship between law and politics. For him, law is an argumentative and interpretative practice, articulated by reasons derived from the practices of authorities. In addition, it has a general intentionality, being able to coordinate social efforts, resolve conflicts or ensure justice between citizens and between them and the State, or even combine all these functions (Dworkin, 1985, p. 160).

Ronald Dworkin associates law with literature, arguing that, like art, it must be interpreted in light of its original intentions and purposes. He illustrates this idea with the metaphor of the “chain novel”: law, like a novel written by different authors, must respect the coherence of previous contributions. Thus, legal interpretation must seek an adjustment (fit) to shared concepts, evaluating the adequacy of decisions through argumentative criteria such as coherence, justification and rationality (Dworkin, 1985).

Finally, Ronald Dworkin rejects the idea of ​​strong discretion, as he argues that, even in difficult cases, the judge does not decide arbitrarily, but rather within an interpretative game in which principles always guide the solution. Thus, the interpretation and application of the rules must seek the best possible adaptation within the current legal system.

Interpretivism in Brazilian constitutionalism

Continuing the analysis of the impact of Ronald Dworkin's thinking on Brazilian law requires, first, an understanding of the role of the Supreme Federal Court (STF) and the reasons that justify its choice as the main executor of interpretivism in the country.

The STF, as established in the Federal Constitution, is the guardian of the Constitution and is responsible for judging issues of constitutional matter. Its primary function is to resolve interpretative disagreements, from specific conflicts to those involving legislation and policy at the national level.

Among its responsibilities, it is worth highlighting the judgment of Direct Actions of Unconstitutionality (ADI) and Declaratory Actions of Constitutionality (ADC), essential instruments for the resolution of constitutional conflicts and capable of establishing new paradigms in Brazilian law. Furthermore, as it is the highest instance of the Judiciary, its decisions are final and unappealable, which highlights its relevance and sensitivity.

The choice of the STF for this analysis is also justified by its structural and functional similarity with the Supreme Court of the United States, an institution extensively examined by Ronald Dworkin, both in his articles in The New York Review of Books as in chapter 5 of Taking Rights Seriously (Dworkin, 2002), entitled “Constitutional Cases”. In both countries, the supreme courts play an essential role in constitutional interpretation and operate with great autonomy, dealing with frequently controversial issues that require a strong argumentative and interpretative component. Thus, the STF represents the ideal field to investigate how Dworkinian interpretivism influences national legal thought.

Adequacy and proportionality

Ronald Dworkin argues that law is essentially argumentative and interpretative, opposing the idea of ​​the “semantic spur” and the strict model of rules. For him, principles are fundamental in solving difficult cases because, unlike rules, they do not offer closed answers, but guide the jurist, eliminating strong discretion.

In the Brazilian legal context, the STF plays a central role in the “chain romance” of law, being the court responsible for deciding complex constitutional issues that have not been resolved by lower courts. In these decisions, the Court cannot limit itself to a positivist approach, but must resort to interpretative approaches to weigh conflicting principles and achieve the best adaptation to shared concepts.

At this point, Robert Alexy's theory becomes relevant, especially with regard to the maxim of proportionality, a method of weighing principles based on three sub-maxims: adequacy (evaluates whether the measure achieves its objective), necessity (whether there are less costly alternatives) and proportionality in the strict sense (whether the benefit of the measure outweighs its costs in restricting rights).

An example of this application is the judgment of Habeas Corpus 82.424/RS, the “Ellwanger case”, in which the STF analyzed the conflict between freedom of expression and fundamental rights, such as equality and human dignity. The Court ruled that freedom of expression cannot be used to justify racist speech, thus demonstrating the argumentative and interpretative practice proposed by Ronald Dworkin in Brazilian constitutional jurisdiction.

Complex cases

The aforementioned case also serves as a basis for demonstrating the logical-theoretical clash present in so-called “hard cases”. These cases occur when there is no clear rule to be applied, which, according to the positivist view, would grant the judge discretionary power that could result in arbitrariness in the decision, making it impossible to identify an objective criterion to determine what is right or wrong (Dworkin, 2002, p. 129).

Ronald Dworkin, however, refutes this idea, arguing that even in difficult cases it is possible to identify principles that guide judicial decisions in a rational and well-founded manner.

This concept is evident in the practice of the STF, which frequently has to deal with situations in which there is a conflict between constitutional principles. The application of Dworkin's theory is evident in the argumentative and interpretative analysis used by the Court in its decisions. One example is ADI 4.439, filed by the Attorney General's Office in 2010, questioning the constitutionality of religious education in public schools.

The main concern was whether this practice would compromise the secular nature of the State and open space for religious proselytism. The Supreme Court, when judging the case, considered freedom of belief and the separation between State and religion, concluding that confessional teaching does not violate the Constitution, as long as it is offered in a non-imposing manner and respects religious diversity.

Another emblematic case is Extraordinary Appeal 1.010.606/RJ, which addressed the so-called “right to be forgotten.” In this judgment, the Court had to balance freedom of expression and the press with the rights to image, privacy, and human dignity. The STF ruled that the right to be forgotten is not compatible with the Constitution, as it could set a precedent for undue restrictions on freedom of information and expression, which would constitute a form of prior censorship. Thus, the Court prioritized freedom of the press, even recognizing that public exposure can cause suffering for the individuals affected.

These cases illustrate the practical application of interpretativism in Brazilian law, demonstrating how the STF uses legal principles to support its decisions, in accordance with the Dworkinian approach, reinforcing the need for coherence and rational argumentation in resolving constitutional conflicts.

Judicial activism

The actions of the Supreme Federal Court often generate debates about its supposed legislative role, as in the case of religious education, whose decision had impacts that go beyond the legal sphere. If the Court had declared its unconstitutionality, the political repercussions would have been significant.

However, the idea that judges act as legislators is mistaken. For Ronald Dworkin, in addition to the lack of strong discretion, this view ignores the fundamental distinction between principles and politics. While principle-based arguments aim to resolve legal issues on a normative basis, political arguments focus on the impact of decisions. Thus, Dworkin argues that judicial decisions should be guided by principles (Dworkin, 2002, p. 128-131).

A clear example of this approach is the judgment of ADPF 132, in 2011, when the STF recognized same-sex unions as family entities with the same rights as heterosexual marriage. Although the Constitution did not explicitly provide for this issue, the Court used the principles of equality and human dignity to guarantee legal protection to these unions.

This case demonstrates that, despite the inevitable political implications, the decision was not a legislative action, but rather a necessary constitutional interpretation, based on the coherence of the fundamental principles of the Constitution. However, this action by the STF often raises discussions about judicial activism. Dworkinian interpretivism legitimizes the role of the Court in weighing principles, but there are criticisms about a possible excessive protagonism of the Court.

Judicial activism, understood as the expansion of the Judiciary's decision-making power on political and social issues, can generate institutional tensions by challenging the separation of powers. On the one hand, the defense of fundamental rights requires an active stance by the Judiciary to correct omissions by the Legislature.

On the other hand, there is a risk that judicial decisions will go beyond the limits of constitutional interpretation and encroach on the powers of Parliament. Thus, the debate on judicial activism remains central to understanding the balance between the role of the STF and the dynamics of Brazilian democracy.

Final considerations

Ronald Dworkin's thinking, by challenging the view of law as a mere system of rules, has had a great influence on both the philosophical and practical scope of Brazilian law, especially on the role of the Supreme Federal Court (STF). His philosophy emphasizes the interpretation of law as an argumentative and interpretative activity, moving away from the mechanical application of rules.

In so-called difficult cases, in which the simple application of rules is insufficient, an in-depth analysis of the conflicting principles becomes essential. The STF, when facing such challenges, balances these principles in an interpretative effort that transcends legal positivism.

Thus, Ronald Dworkin's contribution to Brazilian law is undeniable. His view of law as an argumentative construction provides a solid basis for the STF's actions, especially in complex cases that require adaptation to the country's social, historical and political realities. Examples such as the “Ellwanger case”, ADI 4.439 and Extraordinary Appeal 1.010.606/RJ illustrate how the court adopts an interpretative and deliberative stance, applying constitutional values ​​in a manner consistent with contemporary society.

Therefore, the Dworkinian view of law offers a powerful lens for understanding the role of the STF in the Brazilian legal system. Legal interpretation, far from being a rigid application of norms, assumes an argumentative and ethical character that is essential for justice. The STF not only applies laws, but also actively participates in the construction and evolution of constitutional values, contributing to a more just society aligned with fundamental principles.

Thus, Ronald Dworkin's legacy resonates in Brazil, particularly in the work of the STF as an interpreter of the Constitution. Far from going beyond its functions, the court, through argumentation and consideration of principles, seeks the fairest solution to constitutional issues. Even though its decisions have political implications, its essential function remains to guarantee justice, ensuring the best possible adaptation of constitutional principles to the Brazilian reality.

*David R. Martins is a law student at Federal University of Pará (UFPA).

References

DWORKIN, Ronald. Taking rights seriously. 2nd ed. New York: Routledge, 2002.

DWORKIN, Ronald. A matter of principle. 1nd ed. New York: Routledge, 1985.

NERY JR., Nelson; ABBOUD, Georges. Brazilian Constitutional Law: Complete Course. 2nd ed. New York: Courts Review Publishing House, 2019.

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