A necessidade de (re)pensar a realização do Direito em tempos de protagonismo judicial: um percurso possível em busca de uma reflexão refundadora de um novo sentido
Law is inserted in the world of life. It is therefore inextricably linked to social, cultural, economic and political contingencies. Law is a dynamic science, which implies considering that new issues may become object of its interest or old issues may require current and committed reflections. One...
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| Main Authors: | , |
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| Format: | Article |
| Language: | Portuguese |
| Published: |
Universidade Federal de Santa Catarina (UFSC)
2011
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| Subjects: | |
| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=3880839 |
| Source: | Seqüência: estudos jurídicos e políticos, ISSN 2177-7055, Vol. 32, Nº. 63, 2011, pags. 213-234 |
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| Summary: |
Law is inserted in the world of life. It
is therefore inextricably linked to social, cultural,
economic and political contingencies. Law is a
dynamic science, which implies considering that
new issues may become object of its interest or
old issues may require current and committed reflections.
One of the most recurrent issues in western philosophy
of law and legal theory has been the understanding
of the judge�s role and the limits of his
activities. The judge has already been viewed as a
mere law enforcer, a neutral figure, radically impartial,
whose role was restricted to pronouncing
the truth ontological-substantially provided in the
law (viewed as an authoritative text). The legislative
branch was in charge of making laws and the judicial branch was in charge of enforcing such
laws � an ascetical division among government
agencies, functions and authorities was conceived,
grounded in the classical understanding of the
principle of separation of powers. Creativity was
restricted to the scope of the legislative function
exclusively performed by the legislative branch in
contrast to the enforceability of jurisdiction. Nevertheless,
is there a radical way to separate creation
of law from �law enforcement�? We claim
there is not, that the court activity is unmistakably
creative, and the obligation to (re) think the judicial
function and the role of judge is due to Courts,
law professionals and legal scholars, especially in
times of judges playing the leading role. |
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