Banca de DEFESA: Josialdo Aparecido Batista Ferreira

Uma banca de DEFESA de DOUTORADO foi cadastrada pelo programa.
STUDENT : Josialdo Aparecido Batista Ferreira
DATE: 27/12/2024
TIME: 19:00
LOCAL: SALA A1-04 - FACULDADE DE DIREITO - UnB
TITLE:

Legal certainty in principle-based constitutionalism: is it possible to ensure predictability in contemporary law?

KEY WORDS:

Legal certainty. Principles. Discretion. Law as integrity. Adversarial proceedings. Democratic rule of law.

PAGES: 166
BIG AREA: Ciências Sociais Aplicadas
AREA: Direito
SUMMARY:

To promote reciprocal expectations that the legal system seeks to establish for citizens and prevent them from being surprised by arbitrary legal consequences, legal certainty constitutes one of the foundations for the legitimacy of law. Therefore, the debate about how to rationally control the application of norm-principles has become central in constitutional theory, given that they are conveyed in semantically open texts without prior indication of the immediate consequences that will occur if they are applied. This research is at the heart of this theme, investigating whether there is, in fact, a crisis of legal certainty in the Brazilian constitutional jurisdiction and, mainly, whether it would be possible to guarantee it in contemporary constitutionalism, marked by the normativity of constitutional principles. Its importance is revealed by the criticism of judicial discretion in the application of constitutional principles, for it is understood that these norms cannot be interpreted according to the interpreter’s free convictions, as well as by the desire to find solutions that reconcile legal certainty and constitutional principles. To this end, it is of fundamental importance to examine the Brazilian judicial practice based on cases decided by the Supreme Court, aiming to establish an empirical basis for reflection on a possible crisis of legal certainty in the Brazilian constitutional jurisdiction. Likewise, it was necessary to study how legal certainty is defined by legal science, analyzing its close relationship with the very formation of the Rule of Law. Moreover, considering that legal certainty is primarily materialized in judicial decisions, it is essential to examine how certain theoretical currents affect the application of legal norms and, especially, how they contribute to discretionary attitudes of the interpreter. In this sense, the study focused on the theories of legal positivism, legal realism, and law as integrity, examining how they impact greater controllability of judicial decision-making. To achieve these purposes, the research predominantly uses a qualitative approach due to reflections on the interpreted legal phenomena, employing the constructivist method of law in the development of reasoning, given the need to examine legal phenomena in light of the purposes that justify our legal practices. Regarding the material data to be obtained, the research relied on bibliographical-documentary procedures. At the end, it is confirmed that there is a crisis of legal certainty within the Brazilian constitutional jurisdiction, resulting especially due to the application of principles as naturalized concepts and the belief in the decision-making freedom of the interpreter. Additionally, contrary to the traditional view, it is argued that legal certainty cannot be understood or ensured in the field of judicial application of principles solely based on the textuality of the law. Instead, it requires a procedural and argumentative dimension in judicial decision-making, guided by an interpretation that considers the demands of the principle of contradiction and the pursuit of the integrity of the law. 

COMMITTEE MEMBERS:
Presidente - 1647920 - ARGEMIRO CARDOSO MOREIRA MARTINS
Externo à Instituição - CLAUDIO LADEIRA DE OLIVEIRA - UFSC
Interno - 1905321 - GUILHERME SCOTTI RODRIGUES
Interno - 321346 - MENELICK DE CARVALHO NETTO
Externo à Instituição - PAULO HENRIQUE BLAIR DE OLIVEIRA - TRT