Jurisprudence of values or jurisprudence of principles is a school of legal philosophy. This school represents, according to some authors, a step in overcoming the contradictions of legal positivism[note 1] and, for this reason, it has been considered by some authors as a post-positivism school.[1] Jurisprudence of values is referred to in various works all over the world.[2][3]
This modus of thinking of focuses on constitutional principles.[note 2]
The jurisprudence of values centers on the concepts of incidence and interpretation of the legal norm, as well as rules and principles, and concepts like equality, freedom, and justice.[4]
Juridical norms edit
According to Pontes de Miranda,[5] "The juridical rule is the norm with which the man, willing to subordinate the events to an order and foreseeability, tries to distribute the life's goods". Mankind seeks to somehow control the facts; the juridical norm is used as a tool to decide what is right and wrong. The norm, according to this school, is seen as a creation of man, thus man is controlling man.
Pontes de Miranda explains the concept of fact support. Fact support is the fact that is previewed by the norm; it is the abstract fact; it is the fact that, if it is verified true in the world of facts the norm will fall upon it. In other words, there is a world of concrete facts and there is another world of ideas or types. Thus, the legislator tries to use words to group possible concrete facts into sets, related to the world of ideas. This paradigm makes possible to attribute judicial effects to life's facts.
See also edit
Notes edit
- ^ It is a school that has, since the end of the 19th century, characterized the law as a dogmatic institution, or man's imposition over man, in opposition to the former school, legal naturalism, that treated law as a result of metaphysical-rationalist and scientific sources (natural consequence of the other sciences' conclusions and even work of God). The image of legal positivism nonetheless has deteriorated because of being used to favor class oppression.
- ^ The principle, as opposed to the legal rule, is more subjective, and the traditional interpretation gave it minor importance. Jurisprudence of values focuses on achieving the ideals underlying these legal principles.
References edit
- ^ Teixeira Júnior, Senomar (1 January 2007). "Velhos Novos Direitos". OAB. Retrieved 30 November 2011.
- ^ Shapiro, Martin (4 December 1983). "Recent Developments in Political Jurisprudence". The Western Political Quarterly. 36 (4): 541–548. doi:10.2307/448582. JSTOR 448582.
- ^ Linntam, Marika (1 January 2002). "Building a Just Society: the Role of the Constitutional Judge. Idea of Justice in the Contemporary Value Jurisprudence and the Process of Argumentation". International Law Magazine. Archived from the original on 4 October 2013. Retrieved 1 November 2011.
- ^ Meyer, Emílio Pesulo (1 March 2006). "O Caráter Normativo Dos Princípios Jurídicos". Jus Navigandi. Retrieved 1 November 2011.
- ^ Pontes de Miranda, 1973:3
Further reading edit
- Alexy, Robert (2002). A Theory of Constitutional Rights. Translated by Rivers, Julian. Oxford University Press. ISBN 978-0-19-825821-6.
- Ávila, Humberto (2007). Theory of Legal Principles. Law and Philosophy Library. Vol. 81. Translated by Todeschini, Jorge. Dordrecht: Springer. ISBN 978-1-4020-5878-3.
- Barroso, Luís Roberto. Interpretação e aplicação da Constituição, 3 ed. São Paulo: Saraiva, 1999.
- Barroso, Luís Roberto. O Direito Constitucional e a Efetividade de Suas Normas: Limites e Possibilidades da Constituição Brasileira, 6 ed. Rio de Janeiro: Renovar, 2002.
- Kelsen, Hans (1945). General Theory of Law and State. Cambridge: Harvard University Press.
- Kelsen, Hans (1957). What is Justice?: Justice, Law, and Politics in the Mirror of Science: Collected Essays. Berkeley: University of California Press.
- Kelsen, Hans (1967). Pure Theory of Law. Translated by Knight, Max (2 ed.). Berkeley: University of California Press.
- Larenz, Karl [in German] (1991). Methodenlehre der Rechtswissenschaft. Enzyklopädie der Rechts- und Staatswissenschaft, Abteilung Rechtswissenschaft (in German) (6 ed.). Berlin: Springer-Verlag. ISBN 978-3-540-52872-2.
- Pontes de Miranda, Francisco Cavalcanti. Tratado de Direito Privado, V. I. Rio de Janeiro: Ed. Borsoi, 1954.
External links edit
- The Reasonability Control in Comparative Law
- The Modern Legal Philosophical Thinking: From the Exegesis to the Jurisprudence of Values
- Diritto.it
- Constitutional Interpretation: System and Problem
- Crisis in the Model of Justice: Proceeding Paradigm of the Normative Construction and the New Role of Lawyer Workers
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