Recurso à indeterminação para uma aplicação justa do direito (análise e interpretação de estudo de caso)

Abstract

The purpose of this work is to visualize the available instruments wich judges have so that they can be fair in applying sentences. The general objective was fulfilled through the following specific objectives: we verified the lack of instruments which judges have in order to apply the law fairly and we analyzed how the elements of the theory of interpretation are used in practice by judges. We intended to give to this dissertation a practical and real focus of interpretation and application of law by judges. That is why we chose the structured interviewed as a technique. So, three judges were interviewed and the same questions were made. The questions were previously organized and they followed the same order in all interviews. From the interviews, we wrote down the answers given by the judges and we selected the most expressive parts of the judges talk. After that, these parts were reduced to meaningful unit contexts that is the most important expressions and phrases from the interviews were selected and organized in such contexts so that the essential content could be easily understood. These meaninful unit contexts were organized in parts for reflection and they were the origin for the development chapters of this work: the importance of the extrajuridical knowledge, sources of law, ways of interpretation, application of law with security, application of law with in security. With the data collected through the interviews, we compared them with the bibliography already available. To sum up, we concluded that judges make use of something undetermined in order to apply the law fairly because there is no juridical instrument that can cover all the reality of law.