Como os juízes decidem os casos difíceis? A guinada pragmática de Richard Posner e a crítica de Ronald Dworkin
Bibliographic Data
| ID | 5765672 |
|---|---|
| Authors | Thais Nunes De Arruda (corresponding author) |
| Year | 2011 |
| Publication date | 2011-05-06 |
| Open Access | Yes |
| Type | THESIS |
| Publisher | Universidade de São Paulo. Agência de Bibliotecas e Coleções Digitais (PUBLISHER) |
| DOI | 10.11606/d.2.2011.tde-01032012-085607 |
| OpenAlex | W1630392159 |
| Language | PT |
| References cited | 9 |
This work proposes de analysis of the pragmatic turn of the American judge, Richard A. Posner and application of his theory of pragmatic adjudication to difficult cases.To identify the context in which this turn is given, we present in brief outline the origins of pragmatism in the United States of America, its philosophical implications and legal paradigms for modern dualisms, and its influence on legal realism.The linguistic turn and postmodernism will form a neo-pragmatism, whose keynote will be a kind of antifoundationalism and anti-theory that will be adopted by jurists from the late 1980's.Presented this scenario, we will enter into the work of Richard Posner, highlighting its emergence as a pioneer of the movement of Economic Analysis of Law until, influenced by fragments of the theories set out in the first chapter and reviews posted by the reduction of the right to economic formalism, propose a review of the possibilities and limits of application of economics, law, adopting a more comprehensive and interdisciplinary approach, the next legal pragmatism.The pillars of Posner's pragmatism will be the rejection of the autonomy of law and legal issues of objectivity, based on consensus and mitigated indeterminacy of law, which will lead to the adoption of the no-right answers thesis to difficult cases and the inability of moral theory to provide a solid basis for legal judgments.Posner then, offer a particular vision of pragmatism and practical reason, which constitute the everyday pragmatism and the theory of pragmatic adjudication, its relation with the methods of other areas of knowledge, with legal formalism and the concept of reasonableness, and its application to a difficult case.In the third and final chapter of this study will examine the difficulties of Posner's pragmatic proposal outlined in the critique of Ronald Dworkin, especially on the role of objectivity in the law, the importance of moral philosophy in defining the legal purposes and the danger of transformation of the enterprise legal in a rule-consequentialism
Adjudication · Autonomy · Black letter law · Comparative law · Epistemology · Formalism (music · Indeterminacy · Judicial opinion · Jurisprudence · Law and economics · Legal formalism · Legal realism · Objectivity (philosophy · Political science · Pragmatism · Private law · Proposition · Realism · Sociology · Law · Law, Economics, and Judicial Systems · Legal and Constitutional Studies · Philosophy · Property Rights and Legal Doctrine
Law, Pragmatism, and Democracy
What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)
The Independent Judiciary in an Interest-Group Perspective
In Praise of Realism (and Against 'Nonsense' Jurisprudence)
Conventionalism
The Posner Variations (Twenty-Seven Variations on a Theme by Holmes)
The Philosopher‐Judge
Objectivity and Truth
| Highly cited | No |
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