Razoabilidade e teoria da reserva do possível como fundamentos para o controle jurisdicional de políticas públicas: Uma análise a partir da teoria do discurso
In this paper one approached the importance of discourse theory for the construction of judicial decisions, which, finding the semantic spaces which allow the discussion by juridical argumentation, does not imply the simple task of subsumption. Thus, in these cases, it is up to the judge not only th...
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| Main Authors: | , |
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| Format: | Article |
| Language: | Portuguese |
| Published: |
2016
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| Subjects: | |
| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=7277439 |
| Source: | Espaço Jurídico: Journal of Law, ISSN 2179-7943, Vol. 17, Nº. 2, 2016 (Ejemplar dedicado a: Espaço Jurídico Journal of Law [EJJL] | Quadrimestral), pags. 587-606 |
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| Summary: |
In this paper one approached the importance of discourse theory for the construction of judicial decisions, which, finding the semantic spaces which allow the discussion by juridical argumentation, does not imply the simple task of subsumption. Thus, in these cases, it is up to the judge not only the task of deciding, but giving reasons for his/her choice, always focusing on a rational procedure and argument. Therefore, before the specific case of the criterion of reasonableness referred originally in German theory of the resource limitation, with this paper one aimed an approach oriented to the construction of this decision, from the procedure of juridical discourse to the application of the weighting legal for the solution of the case approach, on the performance of judicial task of ensuring fundamental rights. It was sought, thus, which criteria must (or should) be used in the reasoning of the judgment, in particular, when applying the aforementioned criteria of reasonableness. For the development of the study, one adopted the deductive method of approach. Moreover, as a procedure method, it was applied the mono-graph one. Finally, the results show that the legal arguments and the weighting procedure, when properly demonstrated by the decision, are able to deflect criticism of subjectivity and the feeling of legal uncertainty in cases of semantic spaces or open texture of standards, as well as it was concluded that the criterion of reasonableness can be as significant as the budget criterion of the theory of resource limitation. |
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