A pragmática das nulidades e a teoria do ato jurídico inexistente (Reflexões sobre Metafóras e Paradoxos da Dogmática Privatista Romanista)

AUTOR(ES)
DATA DE PUBLICAÇÃO

2003

RESUMO

This is a study on philosophy of Law, exploring formal aspects of lhe difJerence between lhe "null" and "non-existent" normative declarations in lhe Private Law, a traditional dispute in Roman law Dogmatics. It defines itself as "applied philosophy". Methodologically, it is an exercise on "analytical rhetoric ", structured from a redefinition of lhe dichotomy "literal "/ "metaphoric", which is applied to concepts as "science", "model", "technology", "system", "cause", "existence" and "validity", among others, and, from lhe very beginning to lhe concept of "application" itself Such redefinition allows considering "technology", in its "literal" sense, as a particular perspective perhaps able to renew somehow lhe reflection on lhe theory of Law. The thesis approaches studies in cognitive linguistics, which consider metaphor to be constitutive, in a pre-intentional sense, of thought itself and language. From such perspective, theoretical models that show difJerent results as to lhe problem of distinguishing "null" and "non-existent" are compared as diverse "intuitions" about lhe legal phenomenon. This work compares lhe theories of Pontes de Miranda, Lourival Vilanova and Tercio Ferraz Jr. as samples of semantic, syntactic and pragmatic models of theorization. The partial conclusion drawn is that, although structurally distinct from each other, both lhe binary and ternary calculus, implied in lhe models of lhe twofirst authors, can lead to lhe same practical results, since lhe decision can also be obtained by "breaking" lhe linearity offormal inference with what Ferraz Jr. calls metaphorically "calibration rules", such as happens with "topoi" like "bona fides". The metaphorical texture of these concepts make them work as semantic apertures of lhe legal systems. This means that,from lhe viewpoint of lhe construction of "legal expert systems" (technology in its "literal" sense), both models can be equally formalised with success. The question remains if such "calibration", which isfragmentary, and ispossibly excludedfrom representation by orthodox monotonic logic, can be standardised in formal expression. The technological challenge, in this work, is then,from its beginning, metaphorically represented by de image of lhe "Philosopher-split-in-two"

ASSUNTO(S)

ato inexistente pragmática jurídica direito -- filosofia metáfora direito ato nulo lógica jurídica

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