EPISTEMIC DIFFICULTIES FOR FORMULATING A STRUCTURAL LITIGATION THEORY IN BRAZIL
DOI:
https://doi.org/10.17058/rdunisc.vi66.15739Keywords:
Epistemologia jurídica, Jurisdição Constitucional, Omissões políticas, Processos estruturais, Remédios estruturais.Abstract
When judging the precautionary measure of ADPF nº 347/DF, minister Marco Aurélio recognized the Unconstitutional State of Affairs (USoA) of the brazilian prison system. After the decision, the doctrinal production on structural litigation increased considerably, without giving due attention to the need for theorizing about the phenomenon in the country. To contribute to this task, this paper studies the two main epistemic difficulties for the formulation of a theory of structural litigation in Brazil, namely: the dispute of paradigms about the role of the Judiciary in these processes and the use, doctrinal and jurisprudential, of a decontextualized inductive reasoning. As a methodology, in addition to the analysis of the specialized bibliography, the case ADPF nº 347/DF is studied, in which attempts are made to import USoA into the country. Finally, it is argued that Karl Popper's fallibilism makes it possible to overcome the two epistemological difficulties, serving as a starting point for the construction of a theory adequate to the brazilian reality.