Proposta institucionalista para o dilema da vagueza: um modelo teórico para a reconciliação do direito com a linguagem ordinária

Abstract

The reconciliation between the study of Law to the dynamics of natural language is one of the greatest challenges in the quest to understand the social processes that underlie both the semantics of the legal phenomenon and the normative vagueness. The institutionalist model presents itself as an alternative to revise the traditional concept of Law and to demonstrate that the dilemma of normative vagueness is a natural unfolding of communicative relations, not a defect of communication. It is possible to understand the dilemma of vagueness from the sorites paradox, which shows the difficulties of classical logic in those situations in which it is not clear which concept is suitable for borderline cases. A proper understanding of vagueness, however, requires that Law be understood as the product of social interaction. Keeping in mind that the study of Law is still eminently based on syllogistic and formalist presuppositions, this thesis intends to present a novel way of understanding the legal phenomenon, starting from an institutionalist approach for Law, norms and semantics, seeking to situate vagueness as a result of dissonances in the use of language. Thus, in the initial chapter, the idea of institutionalism is developed, as well as how this model could be used in the study of Law. In the second chapter, the object is vagueness - especially the normative one - in order to revisit the understanding of semantics in legal theory and the way in which vagueness should be inserted within the legal study. Moreover, the third chapter shows how the Toulmin Model, as a complement to institutionalism, can offer elements to structure the legal discourse argumentatively, as well as its contribution to some theoretical and practical challenges faced in the juridical field. The methodology used is of an eminently qualitative nature, and the work is carried out through indirect research, through a bibliographic research, with an exploratory, descriptive, explanatory, and propositive approach. It is concluded that many of the practical problems faced today by enforcers of Law are a result of the insufficiency of the dominant theoretical paradigms, especially about the concepts of Law and legal norm, to operate semantics and vagueness, and to argumentatively structure the legal phenomenon. Although there are other proposals for overcoming the formalism typical of positivism, the existing alternatives are not enough – among other reasons – for persisting with many incorrect premises, which have already been overcome in other fields of study such as neuroscience, linguistics and logics. In this sense, the idea of vagueness, under the institutionalist prism, which emphasizes an idea of language based on social interactions, presents a more consistent proposal to understand and operationalize the phenomenon of Law, by allowing its conceptual dimension to be realigned with the concrete elements of its semantics. It is also concluded that many of the major dilemmas discussed today by legal scholars - such as the limits of constitutional jurisdiction, judicial precedents, and the distinction between rules and principles - can be tackled in a new way based upon the institutionalistic model, by means of opening both new horizons of analysis and new questions to be asked.