Name: LEONARDO DUARTE BERTULOSO
Publication date: 05/05/2020
Advisor:
Name |
Role |
|---|---|
| TÁREK MOYSES MOUSSALLEM | Advisor * |
Examining board:
| Name |
Role |
|---|---|
| CLÁUDIO IANNOTTI DA ROCHA | Internal Examiner * |
| TÁREK MOYSES MOUSSALLEM | Advisor * |
Summary: Everything in the world exists because it is externalized through language. The human being uses language not to describe the world, but to create it. In naming things and externalizing that nomination, man does not describe them, but creates them. Thus, it is seen that the entire existence of reality that surrounds the human being (including the human being as a real being) is only possible because it consists of language. In this sense, all knowledge can only be conceived through language. And it is through this language that law is also expressed. Both positive law, as well as the science of law, are expressed by language. If this is the case, legal norms, taken in the strict sense, as a minimal and irreducible expression of the deontic's manifestation, as defined by Professor Paulo de Barros Carvalho, formed through the meaning extracted from the state-ments of positive law, are also constituted through language. Legal rules from administrative, criminal, tax, procedural, civil law, etc. Language that is also essential for the constitution of administrative acts, which are the acts (commissive or omissive) practiced by public agents (or by private individuals who are given public powers) for strictly public purposes. These acts have a presumption of legality, since they come from people to whom the Order itself confers duties that must be exercised within the strict limits of the legislation. Acts, obviously, performed and translated into language by the competent authority. However, these administrative acts may be practiced in a manner contrary to the law and, if so, they may have their presumption of legitimacy overturned, since the offended, impetent, may rely, based on the Constitution of the Republic and Law n. 12.016, of 2009, of a writ of mandamus, with goal to see the coacting act configured and, continuous act, deconstituted. In this context, the administrative act, formalized by language, of course, and which directly affects the administered, in addition to being subject to questioning through the mandamus, is a legal norm, either general and concrete or individual and concrete, depending on the composition of its antecedent (hypothesis) and consequent (thesis). And, precisely because of these specificities in its elements, that the Judiciary decides (or should decide) the subjects proposed through a writ of mandamus.
KEYWORDS: Language and reality; Law and legal norm; Administrative acts and Presump-tion of Legality; Coercive act and Presumption of Legality; Writ of Mandamus and liquid and certain right; Application of mandamus and elements of the Coercive Act.
