Banca de DEFESA: RAÍI MORAES SAMPAIO DE PAIVA

Uma banca de DEFESA de MESTRADO foi cadastrada pelo programa.
STUDENT : RAÍI MORAES SAMPAIO DE PAIVA
DATE: 25/11/2021
TIME: 10:00
LOCAL: virtual
TITLE:

THE NECESSARY LINK BETWEEN INTERPRETATIVE
METHODS AND THE APPLICATION OF INDETERMINATE
LEGAL CONCEPTS

KEY WORDS:

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

PAGES: 150
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 concepts.
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 concepts 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 concepts 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 concepts insofar they strengthen
transparency, comprehension and control of court judgements.

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