Coerência e responsabilidade política da decisão em Dworkin

The need to formulate a Decision Theory arises for Postpositivism as a condition of its existence. The normative indeterminacy, whereas legal positivism was a synonymous of freedom in decision-making act, means to the new paradigm the urgent quest for legitimacy of judgments, since there is no linki...

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Bibliographic Details
Main Authors: Dytz Marin, Jeferson, Ramos Neto, Nelson Gularte
Format: Article
Language:Portuguese
Published: 2019
Subjects:
Online Access:https://dialnet.unirioja.es/servlet/oaiart?codigo=7513020
Source:Opinión Jurídica: Publicación de la Facultad de Derecho de la Universidad de Medellín, ISSN 1692-2530, Vol. 18, Nº. 36, 2019 (Ejemplar dedicado a: Enero-junio), pags. 87-107
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Summary: The need to formulate a Decision Theory arises for Postpositivism as a condition of its existence. The normative indeterminacy, whereas legal positivism was a synonymous of freedom in decision-making act, means to the new paradigm the urgent quest for legitimacy of judgments, since there is no linking required between linguistic vagueness and lack of correct answer. This lackness cannot be understood as a merely logical consequence of the linguistic vagueness, but as an option that the (Positivistic) Law Theory takes to solve the “problem”. From the dworkinian Decision Theory it was built a correct and not discretionary answer required by the notion of political responsibility of the judge. It is understood that Ronald Dworkin’s proposal can be erected to a general concept of law as interpretation. In consistency with the past, the legislative system and the judicial decisions add the possibility of future extension to similar cases, which is why the principle that is taking from the decision should also be shown as universalizing.