The differentiation between general clause, indeterminate concepts and principles is investigated based on the flexibilization of the law
Name: MARIA IZABEL PEREIRA DE AZEVEDO ALTOÉ
Publication date: 09/07/2020
Advisor:
Name |
Role |
|---|---|
| FLAVIO CHEIM JORGE | Advisor * |
Examining board:
| Name |
Role |
|---|---|
| FLAVIO CHEIM JORGE | Advisor * |
| MARCELO ABELHA RODRIGUES | Internal Examiner * |
| SAMUEL MEIRA BRASIL JR | External Examiner * |
| THIAGO FERREIRA SIQUEIRA | Internal Examiner * |
Summary: The differentiation between general clause, indeterminate concepts and principles is investigated based on the flexibilization of the law. Initially, it is clear that the opening of legislative texts has an enormous impact on legal dogmatic, especially on interpretive methods. At the level of procedural science, the existence of greater freedom for the interpretation of open texture standards is defended, thus, its nature is investigated, whether judicial discretion or not. Based on the definition of judicial discretion in a weak sense, whose conception starts from the doctrine of Ronald Dworkin, it starts to present methods of control and legitimization of this space of interpretive freedom. Thus, two criteria are proposed: cooperation, as a principle and model for redistributing the workforce in the process, as well as the system of precedents for the purpose of maintaining the systemic coherence of the law. Consequently, they are: a formal criterion of legitimacy (cooperation) and a substantial criterion of legitimacy (coherence).
Keywords: Process. Open texture standards. Discretion and control. Formal control (cooperation) and material control (coherence).
