Justiça e hard cases

Abstract

The dissertation has as study an analysis of the motivations that involve the justification of a judicial decision, especially, in those situations called Hard Cases, in which there is a gloom zone in the written law or an absence of a judicial pronouncement regarding the law. It is an investigation through bibliographic research that has as its area of concentration the Ethics and Political Philosophy and research line the State and Theories of Justice. In view of this, in view of the complex definition of the triad “Law, Moral and Justice”, the investigation begins with a presentation of the answers on “What is Justice?” present in Mythology and Antiquity. Then, as a central study, the theories of justice presented by Ronald Dworkin are analyzed in Taking the Rights Seriously (2002), which discusses the importance of the principles as a basis for a better understanding of the law, interpreting the laws in view of its intentionality and purpose and also Chaïm Perelman's theory of justice, in Ethics and Law (2005), which highlights the importance of justifying a rule based on the choice of values that should be considered through the interpretation of dialectic presented to the Universal Auditorium, constituted by normal and competent men, to judge the cases reasonably and confrontation of ideas. The aim of the study is to find a convergence of ideas among the authors studied regarding the act of interpreting and applying the laws based on the interpreter's discretionary act.