A philosophical approach about judger convictions in the decision-making process

• Autor(a) principal: Filho, Enoque Feitosa Sobreira
• Data de Publicação: 2018
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Argumentos : Revista de Filosofia (Online)
• Texto Completo: http://periodicos.ufc.br/argumentos/article/view/32022
• topic: Theory and philosophy of law. Normative implementation. Legal realism.; Teoria da decisão. Concretização normativa. Direito e realismo.

The object and research problem of this essay is to examine the crisis and the heuristic limits of the conceptual mainstream that tries to circumscribe its understanding of law as a thing that depends only on the legislator, confusing the necessary, if not sufficient, aspect of production of the rule legislated with that other activity, of application and concretization by the public agent that decides in the judicial scope. The question is: why the decision-making and normative process repeatedly underestimated in our jurisprudence (here understanding as theory of law) in terms of legal activity? Our research hypothesis is that although the question demands theoretical efforts from other spheres of the theory of law, none of their practical fields need them to clarify it, since it is self-evident and a realistic examination of the activity decision-making. As for the method, this is a bibliographical research. The theoretical reference is that of legal realism as important general theory and philosophy of law.