Dissertação
Filosofia e regras jurídicas: uma análise do problema da sub e sobreinclusão em Frederick Schauer
Fecha
2019-03-08Autor
Rosa, Natália Amaral da
Institución
Resumen
The present dissertation aims at establishing a dialogue between philosophy and law,
especially on the role of rules in a legal system. The discussions stemming from the philosophy
of law over which normative models are most appropriate to guide legal decisions gained more
and more space not only in academia but in society as a whole. It becomes a demand of
individuals to understand how decision-making methods that generate practical effects in life
in general work. The theoretical proposal of Frederick Schauer assumes some postures
regarding the law and the method of decision of the judges, conceiving that a legal system
guided by rules necessarily will contain the problem of the sub and overinclusion of the rules.
This problem arises through the understanding that the world is a fully changing place and that
ordinary language cannot anticipate all possible situations, thus producing particularly
demanding situations within a rule-governed legal system. Thus, it is the central objective of
this research to investigate the conceptual framework developed by Schauer and to analyze
to what extent his theoretical project offers advances in the field of the philosophy of law. In
order to elucidate the problem of this dissertation, the work will be structured in the following
way: first, the concept of open texture of language and its interweaving with the philosophy of
law will be investigated. In a second moment it will be approached a detailed evaluation of the
theoretical aspects proposed by Schauer. Finally, in a third moment it will be analyzed possible
criticisms when assuming the Schauerian positions.