Qual o limite de competência hermenêutica concretista do Supremo Tribunal Federal no Brasil: um estudo a partir da ADO/26

Abstract

This study aims to analyze the limits of the Supreme Federal Court's (STF) concretisthermeneutic competence in Brazil, focusing on Direct Action of UnconstitutionalitybyOmission (ADO) No. 26/DF, which deals with the criminalization of homotransphobia,equating it to the crime of racism. The research seeks to investigatewhether, indeciding on criminalization, the STF overstepped the limits of its role ininterpretingthe Constitution, encroaching on the Legislative's competence and creatingnewnorms. The study begins with a reflection on the judicialization of politicallycontroversial issues and the concretist theory, which allows the Judiciary toaddresslegislative omissions when it fails to create norms that guarantee fundamental rightsexpressed in the Constitution. The STF's analysis in ADO 26/DF reveals thefinelinebetween constitutional interpretation and the creation of norms, a processknownasjudicial activism. The decision, by equating homotransphobia with the crimeof racism,sparked debate about the STF's role in legislating indirectly through its interpretationof the Constitution and the limits of this action. This paper examines theconcept ofunconstitutionality due to omission, the need for the Judiciary to interveneinlegislative omissions, and the risks of an overly powerful Judiciary that canmodifytheConstitution without proper legislative backing. The concretist hermeneutic,addressed in this research, is based on the idea that, in cases of legislativeomission,the STF can ensure the effectiveness of constitutional rights by ensuringtheirpractical implementation. At the same time, this approach raises concernsabout thebreadth of judicial power and its interaction with the Legislative, questioningwhetherthe STF, by using this interpretation, is overstepping its constitutional limitsandassuming a legislative role. The research also explores critiques of legal positivismand constitutionalism, which emerged after the overcoming of positivismand, intheBrazilian context, allows for a broader interpretation of fundamental rights without theneed for infraconstitutional legislation. This analysis of the constitutional jurisdictionmodel and the STF's actions reveals a scenario in which the Court, bydirectlyinterpreting fundamental rights, may violate the separation of powers, leadingtoadiscussion about the limits of such actions. From ADO 26/DF, the researchseekstounderstand the limits of the STF's concretist hermeneutic competence, reflectingonthe role of the Judiciary in ensuring constitutional rights and the need for abalancebetween powers. The Court's interpretation of homotransphobia and its equatingwiththe crime of racism exemplify the challenges the Judiciary faces inbalancinginterpretive actions with constitutional limits and preserving legislative competences.