Name: LUCAS RODRIGUES LIMA
Publication date: 24/04/2020
Advisor:
Name |
Role |
|---|---|
| GEOVANY CARDOSO JEVEAUX | Advisor * |
Examining board:
| Name |
Role |
|---|---|
| GEOVANY CARDOSO JEVEAUX | Advisor * |
| RICARDO GUEIROS BERNARDES DIAS | Internal Examiner * |
Summary: With a view on the problem of its concrete implementation, the present essay has as its object the most fundamental institute, in absolute, of the Law: the norm. In spite of this, call into question our on preconceptions, to once again, turn our eyes to what we already understand, may not be entirely unreasonable, if not for anything else, at least so that we can identify this flat-earthy epistemology that is the theoretical common-sense framework of jurists. Currently, most legal manuals teach that the norm is the meaning of the legal text; many others claim that the application of the Law is made by the judge through a subsumption act. However, such statements are often made without due clarification of the theoretical-philosophical bases that support them. With that, it is not difficult to find such statements unaccompanied by the explanation to the question: after all, WHERE does this meaning (= norm) come from? Furthermore, those who say that the resolution of a legal case occurs by the subsumption of the fact to the norm, leave aside fundamental questions for the legal phenomenon, such as: do we declare pre-existing meanings? Are the meanings reified in the legal rules? Or is the subject-interpreter that holds them, and is free to subject them, especially in cases of semantic anemia of the rules? What do we do, in the field of the Law, with language? Do we reduce it to the condition of an instrument placed between the subject and the object (S - O)? Or do we know that, as a condition, it is that of possibility? This theoretical gap created by the most varied theories of Law and legal-decision-making, that often works with a semantic concept of norm, is invariably filled by something outside the Law itself: the subject's will, evil that is translated in the legal sphere on the betting on judicial discretion. The uncritical way that this bet has been made, prevents the realization that this subjugates the autonomy of the Law, besides compromising the normative force of the Constitution. In order to face this problem, this research, based on philosophical hermeneutics (Heidegger-Gadamer) and the theory of Law as integrity and coherence (Dworkin), argues that there really are correct answers in Law, which are not dependent on an act of will to be built, even though there is no method available to the judge for that purpose. In summary, here it is an open opposition against judicial discretion.
