Banca de QUALIFICAÇÃO: MARCUS VINÍCIUS DE MEDEIROS

Uma banca de QUALIFICAÇÃO de MESTRADO foi cadastrada pelo programa.
DISCENTE : MARCUS VINÍCIUS DE MEDEIROS
DATA : 16/07/2019
HORA: 15:30
LOCAL: UFRN - NUCLEO DE PÓS-GRADUAÇÃO EM DIREITO
TÍTULO:

A DECISÃO JUDICIAL E O PROBLEMA DA DISCRICIONARIEDADE: CONTRIBUIÇÕES CRÍTICO-TEÓRICAS A PARTIR DE RONALD DWORKIN PARA A ARTICULAÇÃO DE UMA RESPOSTA SUBSTANCIALISTA.

PALAVRAS-CHAVES:

Law as integrity. Reconstructive interpretation. Discretionary. Substantialism. Judge Hercules. Ronald Dworkin.

PÁGINAS: 114
GRANDE ÁREA: Ciências Sociais Aplicadas
ÁREA: Direito
SUBÁREA: Direito Público
ESPECIALIDADE: Direito Constitucional
RESUMO:

The context of displacement of the poles of public discussion of sensitive issues from
the Legislative to the Judiciary, as a phenomenon inherent to contemporaneity,
underscored the theoretical inadequacies of positivism, which proposed a model of
dispute resolution based on the restricted application of positive law and invocation of
using the principle of authority as the basis of judicial discretion for the resolution of
hard cases. In the absence of several neoconstitutional theoretical lines that gradually
presented the overcoming of this model, the criticisms made by Ronald Dworkin were
notable, having as a fundamental starting point the adoption of a methodological model
in the theory of law that represents the recognition of the interconnection between the
law and morality, the affirmation of the normativity of the principles, as well as the
criticisms related to the semantic sting, in order to recognize that in the axis of the
theoretical controversies of law, in the core of the judicial practice, political) and
descriptive (formalism), affirming the interpretative nature of the law and its
argumentative expression. From this, it will be possible to develop the conception of
law as an interpretative social practice, highlighting the sense of redefinition of
normative social practices through the perception of value and purpose involved, in a
model of interpretation of the law of the reconstructive type that has the purpose of
consideration of the legal history of the community as a driver for the dynamic
reaffirmation of the values and objectives inherent to each practice, given the
conception of law as integrity. The two main metaphors essential to illustrate the
theoretical proposal of Dworkin, the novel chained by law and the methodical one of
Judge Hercules, understood in their purpose of providing the theoretical subsidies and
of an appropriate methodical for the formulation of judicial decisions based on
arguments nouns aligned with the sense of discovery of law. The elements of
reconstructive interpretation were approached as a way of realizing the conception of
law as integrity, taking into account the moral responsibility of the judge, coupled with
the recognition of the need for a dialogical procedure, through the epistemic cut of
Habermas' communicative reason. the moral participation of those concerned in the
decision-making process. Recognizing these two essential elements to make feasible
the thesis of the only correct answer in law, criticisms are presented to the
inadequacies of the procedural proposal, affirming the necessity of a substantialist
answer against the problem of judicial discretion, through the adequate reception of the
ideal of reason of John Rawls's reading of Ronald Dworkin, in order to affirm the outline
of a theory of judicial decision that praises for the formal-juridical coherence of its
elements (internal justification) and that is seen in an adequate way on the
identification and structuring of the best arguments of principles, especially in the
analysis of questions of political morality (external justification), to finally denote the
real sense of the search for the correct answer in law.

MEMBROS DA BANCA:
Interno - 1167852 - JOSE ORLANDO RIBEIRO ROSARIO
Externo à Instituição - LEONARDO OLIVEIRA FREIRE - F.M.Nassau
Presidente - 1675264 - RICARDO TINOCO DE GOES