A interpretação jurídica no Estado Regulador: da legislação racional à administração/jurisdição eficiente

• Autor(a) principal: Fonseca, Gabriel Ferreira da
• Data de Publicação: 2016
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/7034
• topic: Teoria dos sistemas; Estado Regulador; Interpretação jurídica; Legislador racional; Eficiência; Systems theory; Regulatory State; Legal interpretation; Rational legislator; Efficiency; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

The field of legal interpretation was not immune to recent changes that took place in the State and in Law. Along the last decades, this important communicative activity of the legal system underwent a number of metamorphosis which justified the conduction of the research of which this work is a product. Aiming to apprehend the profound changes that took place in the field of legal interpretation, we investigated the singularities of the new models of Regulatory State and the Law ( pragmatic , flexible , soft , responsive , ductile , heterarchical ) currently in development, in contrast with the outstanding characteristics of the previous models of State and Law. The outcome of the work, which was based on Niklas Luhmann s systems theory, was a description of the investigated social reality, which may be understood as an auto-reflection of legal system, conventionally named legal theory . The option for this theoretical way to observe the investigated reality allowed to place the inquiry in a different position from those of legal practice and legal dogmatics, which are directly associated to the need to decide, and from sociology of law, disassociated from the need to decide. This ambivalent position between internal and external perspectives of the legal system contributed to a heterodox investigation on a useful traditional rhetorical resource of the legal dogmatics: the rational legislator hypothesis. Finally, after having approached the characteristics of this traditional ideal of the law hermeneutics, this work reflects on the risks, limits and possibility of a new rhetoric figure, which is possibly being developed in the interior of the legal system: the efficient administrator/ruler