Justiça Militar, escabinato e o acesso à Justiça Justa

Abstract

The issue of access to justice is straightely connected to the construction and effectiveness of the democratic rule of law. However, structural , material and procedural conditions to the access to justice would be meaningless unless we conceived the access to a fair Justice. The mere expansion of the formal system of access to justice by itself would be insufficient and fallacious if the judiciary is not structured to produce decisions that fit effectively to the situations of life and worldview of the parties. The specialization of knowledge that is required of the judiciary should not be just technical legal knowledge (called “dogmatic”) or normative. But it is also required visceral approach to the existential world in which the conflicts emerge. Modern hermeneutics teaches us that the interpreter of law accesses the normative text already provided with certain possibilities of meaning, of the pre-comprehensions that, far from revealing subjectivism or relativism in the interpretation, stand as conditions of possibility of all understanding. The case reflects a new situation in which the interpreter has to renew the effectiveness of the legal norm. Such effectiveness is not achieved simply by searching for reconstruction of the legislature original intention , but the most correct appropriation of the pre-comprehensions involved in the application context. Considering the hermeneutic circle, the interpreter of the law does not return from the fusion with the case or with the normative text in the same way that it came before. As their original precomprehensions can consolidate, modify, or even completed changed. Therefore, the hermeneutic circle brings us a better interpreter of the law. And better interpreter according to Gadamer is intrinsically related to the extent descriptions are available and the higher integration between them. The trials in military courts (Federal and State) has demonstrated the importance of the pre-comprehensions brought by military judges stemming from their vast experience in the barracks. Letting the military to be judged by peers is not to give him special treatment but guarantee the order, correction and justice. Especially if we consider that in the structure of Brazilian escabinato of the trial will also take part civilian judges endowed with proven experience and legal knowledge.