Casos difíceis no Supremo Tribunal Federal: tipos de argumentos numa corte constitucional

Abstract

The concept of a hard case has been frequent in the phylosophy of law debates since the middle of the 20th century. Nonetheless, it is noticed that there is not a consensus on the analytical approach that reverberates in the normative one – i.e. what to do before such cases – and in the empirical investigation – how to identify them in the legal practice. The proposal of the current dissertation is to take part in this debate. Therefore, taking into consideration the bibliography available in the subject, Neil MacCormick´s concept of a hard case is chosen as the most suitable and comprehensive, as it was presented by Manuel Atienza. In the normative approach, Robert Alexy´s contribution concerning the legal reasoning theory and the theory of principles is taken into consideration. It is realized that the alexyan classification of the types of arguments is decisive to the evaluation of the judicial justifications. After that, the chosen concept is put to test by comparison with the so called “tragic cases”, mainly when it comes to the possibility of a “correct” answer, i.e. the one that is reasonably justifiable. Eventually, empirical research of the jurisprudence of the Brazilian Supreme Court is applied, in order to try the concept – above mentioned – and the instruments of the analyses in the studies of concret cases.