In the middle of the tempest: evaluation and description in legal theory

• Grant number: 16/06243-0
• Support Opportunities: Scholarships in Brazil - Master
• Start date: July 01, 2016
• End date: June 30, 2018
• Field of knowledge: Applied Social Sciences - Law - Theory of Law
• Agreement: Coordination of Improvement of Higher Education Personnel (CAPES)
• Principal Investigator: Ronaldo Porto Macedo Junior
• Grantee: Daniel Peixoto Murata
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

This research is a dissertation about the methodology of legal theory. I intend to investigate the role evaluative judgments, particularly morally evaluative judgments, play in the elaboration of a legal theory that succeeds in explaining its object. Joseph Raz elaborates a theory that allows evaluative judgments, but defends that such judgments are not moral through two theses: (1) the preemption thesis (according to which legal authority works through exclusionary reasons) and (2) the normal justification thesis (according to which an authority justifies itself by being the mediator between the reasons that apply and the individuals). With such theses Raz argues in favor of the social sources thesis of law. Against Raz, I will defend a hypothesis based mostly in Ronald Dworkin's arguments, according to which morally evaluative judgments play a role in every level of the elaboration of a legal theory, which are the identification and justification of the legal phenomena and the choice among different theories. To defend my hypothesis, I will make a critical analysis of the two-razian theses presented above. I will argue (1) that the preemption thesis is not capable of explaining how legal authority works, because affirming such authority always requires some sort of moral evaluation and (2) that the normal justification thesis can't explain how individuals recognize and deal with the authority in democratic contemporary societies. (AU)

Academic Publications

(References retrieved automatically from State of São Paulo Research Institutions)

MURATA, Daniel Peixoto. In the middle of the tempest: evaluation and description in Legal Theory. 2018. Master's Dissertation - Universidade de São Paulo (USP). Faculdade de Direito (FD/SBD) São Paulo.