Banca de QUALIFICAÇÃO: RAÍI MORAES SAMPAIO DE PAIVA

Uma banca de QUALIFICAÇÃO de MESTRADO foi cadastrada pelo programa.
STUDENT : RAÍI MORAES SAMPAIO DE PAIVA
DATE: 09/07/2021
TIME: 10:00
LOCAL: FDA
TITLE:

The necessary link between interpretative methods and the application of indeterminate legal terms

KEY WORDS:

Linguistic-pragmatic turn; ontological hermeneutics; legal dogmatics; indetermined terms; judicial discretion.

PAGES: 120
BIG AREA: Ciências Sociais Aplicadas
AREA: Direito
SUBÁREA: Teoria do Direito
SPECIALTY: Teoria Geral do Direito
SUMMARY:

The reflexes of normative indeterminacy in judicial decisions do not constitute a new problem neither to legal theory nor to legal practice. Likewise, the methods of legal interpretation and application - such as subsumption, the four canons and weighting of assets - have been suggested in a long time by Brazilian dogmatics as important resources to normative application. However, based on a few conclusions of philosophy and hermeneutics’ 'linguistic turn”, some of the Brazilian doctrine have been questioning the possibility of applying the methods as support to decision-making, through criticism that have been affecting legal decisions. On the other hand, a considerable portion of court practices still resort to methods of interpretation to justify their decisions, in particular in hard cases in the light of the presence of indeterminate legal terms. Oftentimes, the resort to methods is only superficial in a culture of application marked by ad hominem arguments and interpretative skepticism. In this context, the present research aims to investigate how far the conclusions of linguistic-pragmatic turn allow to claim as necessary between the application of indeterminate legal terms and resorting to interpretative methods. Following an organization in four discursive levels (philosophical, jusphilosophical, dogmatic, practical), the dissertation appeals to three main metaphorical figures to set a previous comprehension of its object and then entangle it: The Master, which represents legal dogmatics, the Chimera of indeterminate legal terms and the Iceberg of interpretative methods. These figures are analyzed under two main dimensions underlined by the linguistic turn: hermeneutic (Heidegger) and pragmatic (Wittgenstein). After making concessions resulting from partial falsification of its premises, this work concludes that the investigated methods have a necessary relation to filling in legal terms insofar they strengthen transparency, comprehension and control of court judgements.

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