Quando o direito deve ser íntegro: a prática judiciária do Supremo Tribunal Federal à luz de Dworkin

AUTOR(ES)

Breno Vaz de Mello Ribeiro

FONTE

IBICT - Instituto Brasileiro de Informação em Ciência e Tecnologia

DATA DE PUBLICAÇÃO

08/07/2011

RESUMO

The recognition of the normative force of the principles by the Supremo Tribunal Federal entails the necessity of a re-evaluation of the theoretical canons of analysis of the judicial decisions. The principles have huge influence over the way that Law should be seen, including in the enforcement of the rules set by the political bodies of the community. This influence takes effect through an interpretative process that reflecting upon the juridical practices adopted by the community establishes how one ought to act. The determination of conducts on the basis of consideration of principle brings about questions about the legitimacy of the rulings of the Supremo Tribunal Federal in some cases. However, these questions are presently being made on wrong notions. The theory of integrity, defended by Ronald Dworkin, is as a better model to analyze the decisions. This theory links the legitimacy of a states decision to a commitment of the community to act with integrity, according to some coherent moral theory, whose value depends on its ability to be a correct interpretation of the institutional history of the community. The decisions made by the Courts have, therefore, to keep faith with these principles that are the grounds of the political power of the community. They can do that through a model that takes the law of the community as the coherent expression of just one author and that proposes to continue this institutional history in the best possible way. In order to do that the decision must satisfy the demands of two interpretative dimensions, fitting the institutional history and serving as a justification of the communitys practices, according to some pervasive moral theory. This structural model is better than the other ones that have been proposed, including those based in the proportionality, not only because it is more adequate to the judiciary practices of the Supremo Tribunal Federal, but also because, besides that, the abandonment of the pretension to the right answer by other models leads to a moral superiority of integrity, given that the right answer thesis introduces important notions of responsibility

ASSUNTO(S)

dworkin, ronald, 1931- brasil. supremo tribunal federal direito filosofia teses hermeneutica jurisprudencia prática forense lacunas do direito.

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