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2015-11-08 00:31:57.769

A Profª. Drª. Márica Haydée Porto de Carvalho, professora permanente do Progrma de Pós-Graduação em Direito e Instituições do Sistema de Jusiça, publicou artigo intitulado "Прооблемы тезиса о единственно правильном толковании в области конституционного права" ("Os problemas da tese da única interpretação correta em matériaa constitucional"), na revista °russa журнал Россннского права (Journal of Russian Law). O trabalho foi publicado em duas partes nas 9° e 10° edições da revista. 

Confira o resumo (ingles) da parte I:

The thesis on the only true interpretation is present in Savigny's classical methodology of interpretation, according to which the use of a set of methods (grammatical, logical, hisorical and systematic) leads to the disclosure of the value contained in the norm, despite the fact that the interpreter does not have any effect on determining its meaning and porpouse. Positivsts G. Kelsen and H.L.A. Hart preclude the idea of the only true interpretation. The first believes that the law is applied as a frame where there are various possible applications, despite the fact that the enforcer can set the value of the norm even outside the frame. In his turn, H.L.A. Hart understands the law as an "open texture" or a texture of a general character that at some point may be uncertain. With the advent of a welfare state, constitutions take the form of real agreements and commitments, and there appear specific methodos of the Constitution interpretation - integrative, topical and concretion methods which do not offer elements for the only true interpretation, but strive to crate an interpretation of certainty and predictability. P. Heberle uppholds the belief that the interpretation of a constitution is both an element derived from an open society and an element that forms this very society. All these specific methods do not provide elements for the promotion of the only true interpretation, since they give more than one possible alternative to the meaning and significance of the rules for interpretation of a Constitution.  

Acesso à parte I: clique aqui
E da parte II: 
H.-G. Gadamer has established the foundations of philosophical hermeneutics, in which it is important, a preliminary understanding of the interpreter and the tradition. R. Dworkin harshly criticized the idea that the individual constitutional rights may be limited to preserve the rights and demands of society as a whole. In addition, assuming that there should be judicial discretion, even in difficult cases, the author criticized the judge’s image of an ideal that can detect only one correct answer for specific cases. For neoconstitutsionalists R. Alexy and M. Borowski, comprehension is not a procedure that would have resulted in all or in any case to a single and unequivocal results, however, according to M. Borowski, it’s not a lack of specific comprehension of the concept, and quality that characterizes the whole process deciding regulatory issues. The thesis of the only correct interpretation has problems, as indicated by the positivists and neoconstitutsionalists. Indeed, it is impossible that it was the only right decision in each case, in particular in the constitutional area. Taking into account, the open, uncertain and fragmented nature of constitution and characteristics of the social reality in which it is used, it is possible to create a variety of correct answers for the solution of practical problems. Through the interpretation (application) of the constitution implies that it is possible to determine the outcome in a rational and controlled process, approve the result with convincing arguments and thus create certainty and predictability.

Acesso à parte II: clique aqui

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