O argumento dos princípios no discurso jurídico

AUTOR(ES)
DATA DE PUBLICAÇÃO

2006

RESUMO

This study s objective is to describe the utilization of principles in legal discourse, with the purpose of setting up rationally the reasoning presented by the parties in a conflict of interests. The rationale for the choice of the theme and its importance is corroborated with the concern that one should have for the insertion of language as a central matter in the debates of Philosophy of Law, mostly in the pragmatic perspective. Before analyzing the usage of principles in the conflictual speech, it is capital that we emphasize the problems of legal grounding in order to verify present concepts and paradigms of the Law Science. The reason for this examination lies in the inefficiency of the alternatives presented, implying in the wearing of the present theoretical model, mostly due to the criticism of those who operate Law on a daily basis. This disagreement between theory and practice can also be verified in the way one operates principles in applying the Law. The limited usage of principles to solve problems of completeness in legal ordering does not progress because of the understanding of the Law, still under influence of the Analytical Schools. That is the reason of using a method of the theory of legal argumentation in the investigation of principles. The present proposal supports that the usage of principles within legal argumentation does not require the quest for the essence of its meaning, but its normative correction in face of the reasons presented by the parties. In so doind, one will look for confirming that understanding legal principles requires their usage within the conflictual discourse. One of the impacts expected with this present dissertation is to emphasize the element of intersubjection as a condition of the possibility of getting to know the legal principles. It is also expected from the present investigation the establishment of linguistic rules, mostly those named constitutive to control scientifically the argument of principles, as well as suggest a proposal of distinction between legal principles and rules, taking into account the pragmatic dimension of the speech

ASSUNTO(S)

oratoria forense argumentacao reasoning discurso jurídico legal discourse filosofia do direito direito -- filosofia argumentos

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