Abstract

MARINS, Simone. A matter of defeasibility. e-Pública [online]. 2018, vol.5, n.1, pp.210-240. ISSN 2183-184X.

This present article, in a system of conflicts of fundamental rights, common to contemporary dynamic legal systems, examines the property of normative defeasibility, dealing with the processing of norms, their analysis and legal solution in hard cases. In this dichotomy, we go through the reflection of some points of the theories of HART, DWPRKIN and ALEXY, in order to ascertain the evolution and current panorama that this dialectic inserts. Approaching the criteria that should the right applicator follow in a normative conflict in view of the balance of legal certainty and adequate legal solution, we seek to examine from the process of normative interpretation to reach the norm, the normative structure within the monotonic logic to determine its scope, until the process of interaction with other norms in the legal order and the arrival of said collision, where the aspects of the weighting instrument are analyzed, as well as the descriptive instrumentality of the non-monotonic legal logic.

Keywords : Fundamental Rights; Normative Conflict; Normative Defeat; Principles and Rules; Weighting.

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