As tutelas provisórias desde o prisma da teoria (e metódica) estruturante do direito e do integracionismo Dworkiniano
Rocha, Cristiny Mroczkoski
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DescriptionIn the Democratic State of Right, the real practice lies in the effective realization of the fundamental rights and guarantees of individuals, and no longer solely in the realization of the concrete will of the law. It is a function of Justice provides the guardianship of the rights, rendering the process as the means by which the part can reach the tutelage aimed for the right in crisis of effectiveness. It happens that, the duration of the process often appears as an obstacle to generate losses and unfair situations, placing onus precisely on the one who is in the condition of worthy of the judicial protection. In this sense, there is talk of differentiated tutelages, which are provided The Civil Procedure Code (Law no. 13.105 / 2015) has promoted major changes in these tutelas, so-called 'provisional tutelages', which are procedural remedies, in effective terms, for the pursuit of speed in the jurisdictional provision, either to safeguard a right, to satisfy it, or even to acknowledge it as self-evident. Hence we are talking about a resizing of time, in order to deal with what François Ost has already called the timelessness of Law. However, in addition to a dogmatic analysis of all the innovations that come with the new legislation, it is necessary to investigate the praxis itself in terms of summary cognition, as a way of verifying how the State-judge, on a qualitative level, has provided them. In this special, there is Friedrich Müller's Theory of Law, concerned directly with the concretization of the norm (and thus of the right itself). It is a theory that starts from an inductive bias, being considered post-positivist, that is, able to overcome the limits of legal positivism (mere formality to the detriment of substantiality). Directly linked to the current jusconstitutionalism (contemporary constitutionalism) that approximates the law to the reality, it allows, in addition to a greater rationality to the work of the judiciary, the concretization of rights and provides the normativity to the decisory rule directed to the concrete case. In this respect, it can not be disregarded that jurisdictional appeals, in the light of the Democratic Rule of Law, should embrace the concepts of 'coherence and integrity', the principle vectors by which the entire legal system must be read. In this bias, is it possible the dialogue between TED's and Ronald Dworkin's Theory, also because the new Code of Civil Procedure adopted the Dworkinian precepts as "tools" capable of diminishing judicial voluntarism, without, however, reflect that as an objective of promoting tutelages in exhaust cognition(where there is greater degree of legal certainty about the controversy). Taking this scenario into account and being an area of the procedural where the judicial protagonism is denounced, there is a stir: how can Friedrich Müller's Theory and Structural Methodology contribute to the realization of the normative decision-making in summary cognition? Does this structuring of the norm reflect the promotion of 'coherence and integrity', thus encouraging a theory of judicial decision that is consistent with the rule of law resulting from a constitutional democracy?