Tutela judicial antecipada: fundamentos e estrutura
AUTOR(ES)
Luis Carlos do Nascimento
DATA DE PUBLICAÇÃO
2003
RESUMO
This dissertation concerns the proceedings of the Anticipated Judicial Tutelary, with the goal of outlining its fundamentals and its normative structure. The method used is compilation. Propositions of various authors are analyzed â those which agree, as well as those which disagree with the Tutelary. All are organized according to the personal vision of each author. We approach these ideas first by considering the links among them, and then from the opposite perspective, under the umbrella of a critique based on a systematic interpretation of Brazilian law. In this investigation we first take into consideration Habermasâ Discursive Theory as a theoretical subsidiary to demonstrate the fundamentals of Modern Law in post-metaphysic thought. As this theory confers legality upon the status of the fundamental legality of the law, when it results in a discursive and democratic legislative process, with this theory are also presented the foundations of the Anticipated Judicial Tutelary, to the point where we reveal the opinion and the will of the legal community concerning said proceeding, created in the legislative process with the aim of granting effectiveness to jurisdictional services. The judicial process, of which the Anticipated Tutelary is one topic, is also examined as an instrument of legitimization of the Law. Given the possibility of disobedience to judicial norms, inherent in the liberty presupposed by them, legislators (who are constituents too, like any ordinary citizens) have initiated proceedings for resolving conflicts. Because these proceedings demand so much time, the need for ones that will make possible the continued enjoyment of life even during contentious litigation has arisen, becoming the dialectic argument [which has been] put off for the present time. This inversion of the natural order of the process, entitled the Anticipated Judicial Tutelary, is in this closely studied report reorganized as a legitimate proceeding, capable of overcoming the tension between the constitutional principles of judicial security and the effectiveness of jurisdictional protection, to attend to the aspirations of the legal community. The test of its normative structure, beyond demonstrating its legitimacy, reveals the different techniques of cognition elaborated by Juridical Science, which together make possible the desired effectiveness of jurisdictional protection, under the auspices of theories of language and argumentation, to conclude the cycle of proceedings that legitimize the law as an instrument of social integration
ASSUNTO(S)
fundamentals jurisdictional services and techniques of cognition processo judicial tutela judicial antecipada antecipated judicial tutelary processo legislativo legislative process judicial process direito legality fundamentos legalidade prestaÃÃo jurisdicional e tÃcnicas de cogniÃÃo
