Filosofia e regras jurídicas: uma análise do problema da sub e sobreinclusão em Frederick Schauer

• Autor(a) principal: Rosa, Natália Amaral da
• Data de Publicação: 2019
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Manancial - Repositório Digital da UFSM
• Texto Completo: http://repositorio.ufsm.br/handle/1/17440
• topic: Filosofia; Direito; Regras; Linguagem; Decisão; Philosophy; Right; Rules; Language; Decision; CNPQ::CIENCIAS HUMANAS::FILOSOFIA

The present dissertation aims at establishing a dialogue between philosophy and law, especially on the role of rules in a legal system. The discussions stemming from the philosophy of law over which normative models are most appropriate to guide legal decisions gained more and more space not only in academia but in society as a whole. It becomes a demand of individuals to understand how decision-making methods that generate practical effects in life in general work. The theoretical proposal of Frederick Schauer assumes some postures regarding the law and the method of decision of the judges, conceiving that a legal system guided by rules necessarily will contain the problem of the sub and overinclusion of the rules. This problem arises through the understanding that the world is a fully changing place and that ordinary language cannot anticipate all possible situations, thus producing particularly demanding situations within a rule-governed legal system. Thus, it is the central objective of this research to investigate the conceptual framework developed by Schauer and to analyze to what extent his theoretical project offers advances in the field of the philosophy of law. In order to elucidate the problem of this dissertation, the work will be structured in the following way: first, the concept of open texture of language and its interweaving with the philosophy of law will be investigated. In a second moment it will be approached a detailed evaluation of the theoretical aspects proposed by Schauer. Finally, in a third moment it will be analyzed possible criticisms when assuming the Schauerian positions.