Reforma trabalhista e interpretação judicial: a teoria da justiça como equidade de Rawls e a teoria interpretativa do direito de Dworkin como ferramentas de atenuação do ativismo judicial trabalhista

Abstract

Labor judicial activism has been identified as one of the obstacles to the resumption of economic growth and job creation in Brazil. With the scope of trying to mitigate the effects of the referred phenomenon, the Labor Reform Law was edited, through which an attempt was made to introduce a profound change in the hermeneutic parameters of Labor Law, as denounced the alteration effected in article 8, paragraph 2, of the Consolidation Labor Laws. The solution adopted in the reform was to bring labor judicial interpretation to the canons of exclusive legal positivism. This work, starting from the demonstration of the mistake of the legislative option for exclusive legal positivism, proposes to evaluate whether the political theory of justice as equity of Rawls, in the field of political philosophy, and the interpretative concept of law conceived by Dworkin, in the legal theory, can constitute tools capable of offering a better response in the face of the negative effects of judicial discretion and activism. Therefore, after contextualizing the labor reform and pointing out the objective it intended, we seek to understand the terms of the change promoted in the hermeneutic area, both in a dogmatic sense and in the framework of the theory of law. Then, after describing exclusive legal positivism, the theory's only partial ability to help mitigate judicial activism is demonstrated. After this step, Rawls' political theory of justice and Dworkin's interpretive theory of law are explored to the extent that it is demonstrated that both, taken together, reconfigure, in more rational parameters, judicial activism and are consolidated as more adequate tools and capable of mitigating it when compared to the legislative option for exclusive legal positivism.