Name: CARLOS FREDERICO BASTOS PEREIRA
Publication date: 22/05/2017
Advisor:
Name |
Role |
|---|---|
| HERMES ZANETI JUNIOR | Advisor * |
Examining board:
| Name |
Role |
|---|---|
| HERMES ZANETI JUNIOR | Advisor * |
| RODRIGO REIS MAZZEI | Internal Examiner * |
| SAMUEL MEIRA BRASIL JR | External Examiner * |
Summary: The present work aims to analyze the intersubjective control of the legal reasoning in the civil procedural law and how the analytical and hermeneutics theories can contribute to the process of law realization, especially from the article 489, §§ 1 and 2, and article 926 of the Brazilian Civil Procedure Code. Therefore, it draws fundamental premises regarding the linguistic dimension of law, a corollary of the linguistic turn, and how the law as an argumentative practice requiring the interpreter to take the internal point of view in the application of law. It also demonstrates how legal argumentation theories stand out in order to establish the rational correction of the arguments used in the legal discourse through the internal and external justification of the legal reasoning. It also shows how the hermeneutical conception of law imposes the duties observance of strict coherence/consistency and coherence in the broad sense/integrity to be observed to control intersubjectively the legal reasoning. It also proposes that both conceptions can be used in the civil procedural law as criteria for intersubjective legal reasoning control, provided they are understood from a weak ontology. It also quests to demonstrate that the recovery of the dialogue between theory of law and civil procedural law allows a reading of the Brazilian Civil Procedure Code from the significant changes operated by the legal methodology from the second half of the twentieth century. Finally, it identifies as intersubjective control criteria of the legal reasoning decision in the civil procedural law: (i) the identification of the problems of fact (thema probandum) and problems of law (thema decidendum); (ii) internal and external justification of questions of fact and questions of law (article 489, §§ 1 and 2); (iii) the double control exercised by the strict coercion/consistency and coherence in the broad sense/integrity, both as a filter of the premises in justification and as a test of the result of the decision in relation to its capacity to preserve the unity of the legal system (article 926); (iv) the right to be heard as a right to influence and a duty to debate (articles 7, 9 and 10, and article 489, § 1, IV). The research concluded that the possibility of hermeneutics and analytical contribute to the process of law realization, so that the basis of legal reasoning is controllable from logical and argumentative criteria on issues of fact and issues of law, with preservation of the unity of the legal order. Keywords: Legal Reasoning. Language. Hermeneutics. Analytical. Civil Procedural Law
