Mythical Judicial Rulings of Higher Brazilian Courts / O mito da prestaÃÃo jurisdicional pelos tribunais superiores brasileiros

AUTOR(ES)
DATA DE PUBLICAÇÃO

2004

RESUMO

âMythsâ can play contradictory historical/sociological roles in society, justifying, shadowing or hiding reality. Scientific knowledge requires âmethodâ. From Plato/Aristotle man brought Logic/Rhetoric, changed them, made additions and experiments with Bacon, Locke and Hume, reached Descartesârationalism, Hegelâs Dialectics, Exegesis School through Kantâs reconstructed reasons; Kelsen, Dworkin and Rawls up to realistic/pragmatics, and Viehwegâs Rethoric, Perelman/Alexyâs reasoning and semiotics, which uses symbols also explain how to apprehend reality. Modern societies do have institutions that get to know reality in order to preserve or change it. Upon emergence of national states, Judiciary courts monopolistically and groundly started to decide cases. Judicial reasoning derives from mere repetition (common law â stare decisis). It can also be the result of real factual/juridical reasoning, from fictitious reasoning, mythical reasoning which denies jurisdiction, although denial occurs in a lawsuit ruled syllogistically. Judicial reasoning can resul from myths inverting syllogism: decision comes first; reasoning comes afterwards. American pragmatics, on one side, and juridical semiotic theorists can also explain how to reason such legal and judicial decisions. This thesis describes scientific methods used to mythically designing of decisions in Brazilian Higher Courts; it shows how jurisdiction is denied in these courts as well as how appeals system has been destroyed in Brazil, despite enormous number of appeals. By doing so, we intend to prove that judicial reasoning has become useless in Higher Courts, a trend that makes Courts themselves unnecessary

ASSUNTO(S)

tribunais recursais direito law judicial rulings fundamentaÃÃo court of appeals judicial reasoning decisÃo judicial direito

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