A possibilidade de existência de lacuna constitucional à luz do direito como integridade: uma análise acerca dos limites da atuação jurisdicional

Abstract

Amid a hermeneutic analysis, we discuss the possibility of existent gaps in a constitutional sphere. The present work analyses what is a gap and how the Judiciary should face the situation, in order to afford an appropriate legal application. For so, we take refuge with the Theory of Law as integrity; Ronald Dworkin, who presents a concept of law towards to an institutional moral, which provides not only a complete application of the law, but also its creation in these patterns. The scope is to set down whether what is missing in the Constitution is a normative gap, to investigate minutely whether the magistrate can fill it, making distinction between normative gaps and ideological gaps. This is a question to be answered by the Theory of Law, with great relevance in the forensic practice though; as it applies to the concrete case of same-sex relationships, because of its heumeneutic role.