A questão de fato e a questão de direito a partir de uma perspectiva hermenêutica

AUTOR(ES)
DATA DE PUBLICAÇÃO

2006

RESUMO

The present paper studies the influence of the rationalist, liberal and illuminist thought on the civil procedure, especially concerning the separation between the matter of right and the matter of fact. The first chapter deals with the Occidental thought evolutions history, from the Roman conception of jurisdiction, advancing for the modernism and finally reaching centuries XIX and XX. The second chapter directly approaches the question of the normative world and separate of the world of life in legal dogmatic, disclosed specifically for the silogism as a logical-deductive method, which works with the idea of the right (law) as a bigger premise and the fact as a lesser one. This subheading focus on the clear separation of such elements due to the exclusive competence for right (law) examination of the Superior Courts, as well as the dualist-monist controversial visions of the right. In the final chapter is presented a proposal of a new look at the accomplishment of right through procedure laws, specially based on Martin Heidegger and Hans Georg Gadamer, from wich its possible to breach with the citizen-object relation that plasters the procedural rite, analysing the fact and the right from its only onthological difference, in attempt to demystify the rationalist thought that works with the idea of eternal and absolute truth and thus to allow the accomplishment of the right, leaving from the revelation of its meaning in the examination of the facts, with a greater engagement of the operator of the right, front of social actuality

ASSUNTO(S)

filosofia direito processo civil hermenêutica jurídica

ACESSO AO ARTIGO

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