O realismo jurídico norte-americano: uma reflexão sobre a vinculação do juiz constitucional ao direito positivo

AUTOR(ES)
DATA DE PUBLICAÇÃO

2008

RESUMO

This essay intends to analyze what American Legal Realism states about the importance of positive law in the process of judicial decision. The starting point is the perception that Brazil faces a moment of perplexity as to the power conferred to Supremo Tribunal Federal and the way it is exercised. The activity of the Brazilian Constitutional Courts members seems to be distant from the traditionally acknowledged judicial function, that is, the technical and unbiased disclosure of answers provided by previously existing legal formulations and their application to individual cases, independent of creative acts. This leads to the questioning of the actual role of the constitutional clauses in the settling of controversies taken to court. In this context, the author undertakes a study about the realist movement which took place in the United States and became known for questioning the practical relevance of established rules as compared to other factors active in this process, by means of observing the way in which concrete problems are actually solved by state agencies. The author adopts as her main focus works by realist authors, especially those considered as the most representative of the movement, Karl Llewellyn and Jerome Frank, and investigates which is the object of their criticism and which are their main theses. The essay identifies elements which may hopefully contribute to studies aimed at a better understanding and acceptance of the constitutional judges action in Brazil, based on the theories presented by this intellectual movement, which had a great and enduring impact in its country of origin

ASSUNTO(S)

american legal realism constitution authoritativeness tribunal supremo brasil -- supremo tribunal federal -- jurisprudencia direito -- estados unidos -- interpretacao e construcao judicial decision construction decisão judicial justica -- administracao -- estados unidos supreme court direito constitucional obrigatoriedade interpretação realismo jurídico norte-americano constituição discricionariedade discretionary decision hermeneutic hermenêutica tribunais -- estados unidos

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