Banca de DEFESA: MARCUS VINÍCIUS DE MEDEIROS

Uma banca de DEFESA de MESTRADO foi cadastrada pelo programa.
DISCENTE : MARCUS VINÍCIUS DE MEDEIROS
DATA : 26/08/2019
HORA: 10:00
LOCAL: UFRN - NUCLEO DE PÓS-GRADUAÇÃO EM DIREITO - auditório
TÍTULO:

THE JUDICIAL DECISION AND THE PROBLEM OF DISCRICIARITY: CRITICAL-THEORY CONTRIBUTIONS FROM RONALD DWORKIN AND JÜRGEN HABERMAS TO THE ARTICULATION OF A SUBSTANCIALIST RESPONSE.

PALAVRAS-CHAVES:

 

Law as integrity. Reconstructive interpretation. Discretion.
Substantialism. Judge Hercules. Ronald Dworkin. Jürgen Habermas.

PÁGINAS: 183
GRANDE ÁREA: Ciências Sociais Aplicadas
ÁREA: Direito
SUBÁREA: Direito Público
ESPECIALIDADE: Direito Constitucional
RESUMO:

The context of dislocation of the poles of public discussion about sensitive
issues from the Legislative to the Judiciary, as a phenomenon inherent to
contemporaneity, highlighted the theoretical inadequacies of positivism, which
proposed a model of dispute resolution based on the strict application of legal
rules, using the resource. of discretion, founded on the principle of authority, to
attenuate the problem of indeterminacy of law and, more sharply, to judge hard
cases. In the post-positivist theoretical lines that gradually presented ways to
overcome this model, the criticisms made by Ronald Dworkin were noted,
having as a fundamental starting point the adoption of a methodological model
in the theory of law that represents recognition of the interconnectedness of law
and morality, the affirmation of the normativity of the principles, as well as the
criticisms of the semantic sting, in order to recognize that in the axis of the
theoretical controversies of law, at the heart of judicial practice, there must be
an appreciation of both the evaluative (political morality) and the descriptive
elements (positive law), affirming the interpretative nature of law and its
argumentative expression. From that, the conception of law as an interpretative
social practice is developed, emphasizing the sense of redefinition of normative
social practices through the perception of the value and purpose involved in
them, in a reconstructive model of interpretation of law that aims at the
consideration of the legal history of the community as a guiding thread for the
dynamic reaffirmation of the values and objectives inherent in each practice,
taking into account the conception of law as integrity. The two main metaphors
that are essential to illustrate Dworkin's theoretical proposal, which are the
chained novel of law and the methodology of Judge Hercules, understood in
their purpose of providing the theoretical support and an appropriate method for
the formulation of judicial decisions based on substancial arguments, guided by
the sense of discovery of law, by denying free judicial creativity, are
approached. The elements of reconstructive interpretation are analyzed as a
way of realizing the conception of law as integrity, taking into account the moral
responsibility of the judge, linked to the recognition of the need for a dialogical
procedure, through the epistemic clipping of Habermas’ theory of
communicative rationality, which implementation should encourage the
cooperative participation of stakeholders in the decision-making process.
Recognizing those two essential elements to make the thesis of the only correct
answer in law feasible, the critiques of the inadequacies of the proceduralist
proposal for the Brazilian jurisdictional scenario are presented, stating the need
for a substantial answer against the problem of judicial discretion. Finally, in this
work it is outlined a theory of judicial decision that values the legal-formal  coherence of its elements (internal justification) and that adequately deals with the identification and structuring of the best arguments of principles, notably in the analysis of political morality questions (external justification), to finally characterize the real meaning of the search for the right answer in law.

MEMBROS DA BANCA:
Interno - 010.069.614-70 - LEONARDO OLIVEIRA FREIRE - SESED
Interno - 1675264 - RICARDO TINOCO DE GOES
Externo à Instituição - MARCO AURELIO DE MEDEIROS JORDÃO - UNI-RN