A desaposentação no STJ e no STF: implicações teóricas da teoria da decisão judicial a partir do estudo de caso dos posicionamentos das Cortes Superiores

Abstract

The research analyzes the Theory of Judicial Decision, with a cut-off in the analysis of judicial decisions involving Social Security, which is a branch of fundamental rights and which is the subject of current discussion on the Welfare Reform. The research problem is presented in two related questions, which, in a nutshell, debate how judges decide in cases involving Social Security, specifically regarding to unretirement, and which theoretical-interpretive perspective best fits with the constitutional hermeneutics, in the sense of protection and effectiveness of the fundamental right to social security. Such research is relevant because it can extract notes about the current stage of understanding of the Social Security a fundamental right, as well as about the understanding of the Legal System itself. The theoretical framework used supports Social Security as a fundamental social right and criticizes the instrumental rationality adopted by the judges - especially the STF - and sees in the hermeneutics a suitable dialogue between the way judges decide and the eventual legislative reform in Social Security. The research has a qualitative character and begins with the use of the bibliographic research method, as well as the case study for the analysis of the votes of the ministers of the STJ in the judgment of Special Appeal No. 1.334.488 and of the STF in the judgment of Extraordinary Appeals nº 381.367, 827.833 and 661.256. The method of approach will be the inductive method, while the procedural method, in turn, will be the monographic method.