THE VARIOUS FACETS OF JUDICIAL DISCRETION IN BRAZILIAN PRIVATE LAW: THE “RESURGENCE” OF THE FREE LAW MOVEMENT IN TERRAE BRASILIS

Abstract

This paper demonstrate that Private Law, as well as the whole brazilian legal theory, deeply suffers with the problem of judicial discretion and, consequently, with a judicial role that many times fout legislation democratically established. Lately, brazilian Private law experience’s regenerate attitudes of the Free Law Movement at the beginning of the 20th century on France, which name denunciate that law would be free of the legislation. The method of approach is the hermeneutic-phenomenological developed by Heidegger and foloowed by Gadamer, on a sort of dig over the linguistic ground on which is seated the concepts to the phenomenon could appears. As partials results, add the fact of necessity of brazilian law fnd a legal decision theory appropriate to constitutional defaults, taking in consideration interpretative limits and the role of Judicial Power on a democracy