Constitutional Methodological Pluralism as a Rhetorical Argument by the Brazilian Federal Supreme Court to Change its Tax Case Law

Abstract

This paper seeks to identify the use by the Brazilian Federal Supreme Court of the methodological pluralism approach as the rationale for some recent changes to its case law. To this end, this research examines how this interpretive approach arose, following the literature on legal interpretation. Then, it analyses the rules on tax interpretation provided by the Brazilian National Tax Code. This paper also studies the tax law construction by the Brazilian Federal Supreme Court, especially its decision-making process according to the constitutional pluralism method. This paper focuses on two important cases delivered by the Brazilian Supreme Federal Court: the extension of the constitutional tax immunity for e-books (RE 330.817/RJ), and the creation of a new constitutional concept of services for tax purposes (RE 651.703/PR). The main objective of this paper is to investigate whether this methodological pluralism is truly a new judicial doctrine or if it is just a rhetorical argument used by the Court when it seeks to change its previous positions. Finally, the hypothesis in this paper is that the methodological pluralism approach is a rhetorical and contradictory argument developed by the Brazilian Constitutional Court.