Justificação da legislação na perspectiva da legisprudência: princípios de avaliação legislativa e controle da legislação


IBICT - Instituto Brasileiro de Informação em Ciência e Tecnologia




In a context in which rationality of legislation is systematically put in crisis, this work aimed to investigate legal argumentation applied to justification of legislation through evaluation of legislation. Therefore, through the theoretical orientation of Luc J. Wintgens legisprudence, it started from a critical perspective of legalism, as the ethical and epistemological science of law, discussed on classical social contract theories of Hobbes and Rousseau. This culminated in the value of freedom, founding principle of modern political space, as principium, starting point of action and last term in legitimation chain of law. Conceiving freedom as principium, it is logically derived from it the duty of justifying legislation through rational argumentation, since it is no more given to sovereign legislator maximum discretion on legislative decision. As a structural premise of justification, freedom as principium implies that legislation is just one of the alternatives for state intervention, committed to social purposes, and that sanctions are submitted to special justification on legislation goals, as they means a double restriction of freedom. Legislation so encompass a temporal dimension, from which it is derived a duty of observation and actualization of law, in order to maintain its integrity and coherence as a normative system. If justification imposes duties for a responsive legislator, committed to fundamental rights effectiveness, evaluation of legislation, by its methodical nature, seems to provide data subvention for justification. It was discussed so, how evaluation can function as legislative internal control, and how it can support legal actors and jurisdiction in its task of interpretation external control completing a circle of information which puts legal actors in constant dialog and resizes of normative phenomenon as an unitary entity.


direito teses.

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