O processo jurisdicional e a produção da norma jurídica concreta : a atividade criativa do juiz na realização dos direitos

Abstract

This present dissertation aims to clarify whether the decisions made in court by the judges, intending to materialize rights, represent innovative activity towards general and abstract rules made by the constitutional legislator and the legislature. Precisely, the aim will be to identify if the judges innovate in some way the legal system to edit your decisions, but also whether such an innovation originally set creative activity towards prescriptive messages already contained in the abstract legal language. The analysis of the topic requires the usage of formalism`s theoretical tools, which is a technique of the dogmatic science of law. However, this technique has shown itself as unable to study with the necessary depth, the judge’s activity in terms of materializing rights. In this picture that emerges semiotics, which, when applied to law, presents itself as an effective technique for this task. Legal Semiotics, has not only the power to highlight the importance of conceptualization and systematization suggested by the conceptual formalism, but also allows a thorough study of the influence of legislated standards for judicial enforcement of the law, as well as to investigate the possibility of judge’s creativity in this procedure. Thus, the application of the concepts and figures constructed by semiotics allows to study the positive law as a code, understood as a system of signifiers and meanings related to social conventions, in which the judge acts as your user in the context of a communication process. If this view, on one hand, emphasizes the commitment of judges to the linguistic system, on the other hand permits to grasp that it is possible for such agents create, in specific situations, concrete innovative legal rules towards legislated law.