Direito e consequência no Brasil: em busca de um discurso sobre o método

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2013-01-01
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Today, a growing number of research institutions and academic works in law seek to investigate the effects of legal rules on social and economic reality, a goal that differs from that of traditional doctrinal scholarship but is similar to the aspirations of other social scientists. In this Article, we argue that, in Brazil, the adoption of new methodologies in legal scholarship relates to a transformation in the mode of legal interpretation towards greater acceptance of the use of consequentialist arguments in court. As a result, judicial interpretation increasingly requires not only the verification of past facts that are abstractly described in legal rules, but also probabilistic judgments about future facts in order to carry out the legal objectives embodied in legal principles. Nevertheless, the persistence of radical uncertainty about the workings of the world -- including the factual consequences of legal rules -- thwarts the use of extreme consequentialist reasoning as a decision method for social organization. In view of social sciences' inability to dictate how the legal system is to operate, the role of legal scholars as authors of doctrine as non-science will subsist.


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