Discricionariedade judicial e resposta correta: a teoria da decisão em tempos de pós-positivismo

Abstract

After the philosophical transformations that overcame the metaphysical tradition, there's no reason, at this time, for lawyers to comprehend the complex problems they encounter in jurisprudence based on the post-exegetical positivism. Based on this, for the Judicial Branch realise its duty in accordance to the Rule of Law, it's necessary to face what normative positivism hides, leaving on background questions such as interpretation, judicial discretion and the judicial decision. In this sense, the present paper intends to criticise the judicial discretion attributed to the organs of the Judicial Branch, based on Heidegger's hermeneutics, Gadamer's philosophical hermeneutics and Dworkin's post-positivist thinking.