Os standards probatórios na jurisdição constitucional

Abstract

The thesis investigates the centrality of facts in Brazilian constitutional adjudication and argues that Constitutional Court decisions that rely on revisable constitutional facts require explicit criteria for evidentiary sufficiency. It starts from the diagnosis that the absence of clear standards of proof weakens the empirical justification of rulings; as a remedy, it proposes standards that operate as thresholds of corroboration and enhance the rationality and democratic legitimacy of decisions. Examples such as the asbestos ADIs and public hearings on the employment status of app-based drivers and civic-military schools illustrate the problem. At the theoretical level, the thesis weaves together three strands. Drawing on Faigman, it asserts the need for an empirical-realist approach to facts and objective criteria for their assessment, avoiding decisions grounded solely in normative constructions. Based on Müller, it maintains that facts form part of the structure of norms (normative scope), which requires treating them as components of constitutional interpretation. From Alexy, it highlights epistemic spaces and the epistemic law of balancing: the more intense the interference with fundamental rights, the greater the required certainty of factual premises — grounds for calibrating deference and scrutiny. Methodologically, it adopts qualitative, descriptive research using a deductive-analytical method and bibliographic and documentary analysis; it draws on Supreme Court decisions (including those with public hearings and amici curiae), national and foreign scholarship on legislative facts, and comparisons with the U.S. model of tiers of scrutiny. Its main contribution is to propose graduated standards of proof according to the intensity of the impact on fundamental rights: greater restriction implies lower levels of deference and more demanding evidentiary thresholds; in matters not involving fundamental rights, the legislature’s and Administration’s margin of configuration expands. This architecture makes the assessment criteria explicit, strengthens extra-procedural justification, and guides judges in corroborating factual hypotheses, fulfilling justificatory and heuristic functions.