An antiessentialist philosophical vision for the abandonment of the legal rationalityâs notion: the decision procedures in law as steady and contingent linguistic surroundings / Uma visÃo filosÃfica antiessencialista para o abandono da noÃÃo de racionalidade jurÃdica: os processos de decisÃo em direito como ambientes lingÃÃsticos regrados e contingentes

AUTOR(ES)
DATA DE PUBLICAÇÃO

2005

RESUMO

This dissertation intends to present the idea that Philosophy of Law does not need to maintain de notion of rationality as a criterion of correction and predictability of the law decisions. The surmounting of the ideas of rationality linked to the essentialist vision of law and facts seems to lead to a kind of relativism, which, in jurisprudence, identifies itself with the idea of arbitrary decisions. Here, Habermasâ approach to a procedural rationality, based on obeying transcendent rules, is presented as a bearing to be surmounted by a pragmatic philosophy of law. The central idea is that the decisions procedures in law are steady and, at the same time, contingent linguistic surroundings. Thus, the idea of a noncontextual procedural rationality is, not just philosophically fragile, but also of small utility, through the verification of contingency and of the existence of various species of decision procedures, each one serving to each specifics purpose. The pragmatic bearing, linked to wittgensteinian ideas is, hence, the most favorable to the studies of law in a complex society as Brazilianâs

ASSUNTO(S)

pragmatismo direito philosophy of law pragmatism filosofia do direito legal rationality racionalidade jurÃdica

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