A decisão judicial como ato argumentativo-pragmático

• Ano de defesa: 2016
• Autor(a) principal: Jorge Neto, Nagibe de Melo
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Palavras-chave em Português: Teoria do direito; Argumentação jurídica; Decisões judiciais; Direito
• Link de acesso: http://www.repositorio.ufc.br/handle/riufc/23816

This thesis aims to build and present a theory of judicial decision as an act of an argumentative-pragmatic speech. Does that mean that the decision is the result of an internal dialogue that occurs between the parties of the lawsuit and the judge and is conditioned by the controversial issues and the arguments, and an external dialogue that takes place between (a) the judge and the parties; (b) all other actors involved in processes that decide similar matters; (c) the academic community; (d) and widely regarded civil society. It is this discourse that constructs the law, from the multi-stakeholder input, and sets the criteria of justice. The thesis is based largely on Ronald Dworkin’s law as integrity theory, Jürgen Habermas’s truth as consensus theory and Robert Alexy’s Legal Argumentation Theory. Incidentally analyze the theoretical contributions Richard Posner, Neil MacCormick and Stephen Toulmin. The work follows this plan. First they are made some conceptual definitions. In the second chapter the issue of the judge's discretion and some tentative solutions is presented. The results confirmed the inadequacy of exclusively hermeneutical methods. The third chapter is devoted to the analysis of the legal argument in the court decision from the truth as consensus theory and criticism of the Robert Alexy’s Legal Argumentation of Robert Alexy. Finally, in the fourth chapter, from the exposed arguments, is presented the criteria of validity, legitimacy and fairness of the court decision.