Democracy, rule making and execution: a study on the possible intersection between the gap theory and the separation of powers

• Grant number: 23/07322-5
• Support Opportunities: Scholarships in Brazil - Master
• Start date: October 01, 2023
• End date: June 30, 2025
• Field of knowledge: Applied Social Sciences - Law - Theory of Law
• Principal Investigator: Lucas Fucci Amato
• Grantee: Rodrigo Marchetti Ribeiro
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

There are numerous legal theories that divide jurists, but two are of particular importance today. In the legal theory, there is intense discussion as to whether or not Law is capable of providing a certain answer to the hermeneutical doubts that are placed before the interpreter (problem of the determination or indeterminacy of Law, with the detection of gaps as a borderline situation). Parallel to this, it is discussed in the theory of Constitutional Law (and in the general theory of Law) whether the courts extrapolate their legitimate constitutional roles within a democratic legal system (judicial activism). When one considers that in the process of creating and executing law, every creation is also an application of rules, and vice versa, it is clear that these discussions have an intersection between them. Is it possible to overcome the discussion of judicial activism by bringing up debates from the general theory of Law? What does the democratic theory (of political science), so often invoked in the literature of judicial activism, have to say about gaps in law? Does the democratic theory of separation of powers stand firm before the notion of indeterminacy of Law? These are some of the questions that the dissertation aims to answer. The central hypothesis is that it is possible to propose an intersection between democratic separation of powers theories and the theorization about gaps and indeterminacy of law.) To test it, a comparative study will be carried out between the thoughts of Hart and Dworkin, regarding the indeterminacy of law, and between the thought exposed in The Federalist (especially by Madison) and the political science model of Robert Dahl, critical of The Federalist.