A decisão judicial e o problema da discricionariedade: contribuições crítico-teóricas a partir de Ronald Dworkin e em Jürgen Habermas para a articulação de uma resposta substancialista
The context of dislocation of the poles of public discussion about sensitive issues from the Legislative to the Judiciary, as a phenomenon inherent to contemporaneity, highlighted the theoretical inadequacies of positivism, which proposed a model of dispute resolution based on the strict application...
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| Tipo de recurso: | tesis de maestría |
| Estado: | Versión publicada |
| Fecha de publicación: | 2019 |
| País: | Brasil |
| Institución: | Universidade Federal do Rio Grande do Norte (UFRN) |
| Repositorio: | Repositório Institucional da UFRN |
| Idioma: | portugués |
| OAI Identifier: | oai:repositorio.ufrn.br:123456789/28149 |
| Acceso en línea: | https://repositorio.ufrn.br/jspui/handle/123456789/28149 |
| Access Level: | acceso abierto |
| Palabra clave: | Direito como integridade Interpretação reconstrutiva Discricionariedade Substancialismo Juiz Hércules Ronald Dworkin Jürgen Habermas CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO |
| Sumario: | The context of dislocation of the poles of public discussion about sensitive issues from the Legislative to the Judiciary, as a phenomenon inherent to contemporaneity, highlighted the theoretical inadequacies of positivism, which proposed a model of dispute resolution based on the strict application of legal rules, using the resource. of discretion, founded on the principle of authority, to attenuate the problem of indeterminacy of law and, more sharply, to judge hard cases. In the post-positivist theoretical lines that gradually presented ways to overcome this model, the criticisms made by Ronald Dworkin were noted, having as a fundamental starting point the adoption of a methodological model in the theory of law that represents recognition of the interconnectedness of law and morality, the affirmation of the normativity of the principles, as well as the criticisms of the semantic sting, in order to recognize that in the axis of the theoretical controversies of law, at the heart of judicial practice, there must be an appreciation of both the evaluative (political morality) and the descriptive elements (positive law), affirming the interpretative nature of law and its argumentative expression. From that, the conception of law as an interpretative social practice is developed, emphasizing the sense of redefinition of normative social practices through the perception of the value and purpose involved in them, in a reconstructive model of interpretation of law that aims at the consideration of the legal history of the community as a guiding thread for the dynamic reaffirmation of the values and objectives inherent in each practice, taking into account the conception of law as integrity. The two main metaphors that are essential to illustrate Dworkin's theoretical proposal, which are the chained novel of law and the methodology of Judge Hercules, understood in their purpose of providing the theoretical support and an appropriate method for the formulation of judicial decisions based on substancial arguments, guided by the sense of discovery of law, by denying free judicial creativity, are approached. The elements of reconstructive interpretation are analyzed as a way of realizing the conception of law as integrity, taking into account the moral responsibility of the judge, linked to the recognition of the need for a dialogical procedure, through the epistemic clipping of Habermas’ theory of communicative rationality, which implementation should encourage the cooperative participation of stakeholders in the decision-making process. Recognizing those two essential elements to make the thesis of the only correct answer in law feasible, the critiques of the inadequacies of the proceduralist proposal for the Brazilian jurisdictional scenario are presented, stating the need for a substantial answer against the problem of judicial discretion. Finally, in this work it is outlined a theory of judicial decision that values the legal-formal coherence of its elements (internal justification) and that adequately deals with the identification and structuring of the best arguments of principles, notably in the analysis of political morality questions (external justification), to finally characterize the real meaning of the search for the right answer in law. |
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