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__________. A condição humana / Hannah Arendt;tradução: Roberto Raposo, revisão técnica: Adriano Correia. – 11. ed. – Rio de Janeiro: Forense Universitária, 2010.
CELLA, José Renato Gaziero. Legalidad y Discricionariedad: La discusión HART y DWORKIN. Disponível em ‹ http://www.cella.com.br/conteudo/conteudo_27.pdf›. Acesso em: 01/02/2011.
COELHO, André. Disponível em ‹http://webcache.googleusercontent.co m/search?q=cache:9roXwfZVQR4J:aquitemfilosofiasim.blogspot.com/2008/06/distino-entre-ser-e-dever-ser-emhans.html+o+dever+jur%C3%ADdico +e o+dever-ser+hans+kelsen&cd=9&hl=pt-BR&ct=clnk&gl=br›. Acesso em: 23/11/2010.
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Notas
[1] Texto originalmente publicado no livro “FUGA, Bruno Augusto Sampaio; CENCI, Elve Miguel. Direito Contemporâneo – Perspectivas. Artigo Direito e Discricionariedade. A discricionariedade do Juiz: discussão entre Dworkin e Hart. Bruno Augusto Sampaio Fuga e Elve Miguel Cenci. Editora CRV, 2013”, neste ato disponibilizado para pesquisa.
[2] after revolution or major upheavals, the Courts of a system have to consider their attitude to the moral iniquities committed in legal form by private citizens or officials under na earlier regime. Their punishment may be felt socially desirable , and yet, to procure it by frankly retrospective legislation, making criminal what was permitted or even required by the law of the earlier regime, may be difficult, itself morally odious, or perhaps not possible. (HART, 1997:208)
[3] In these circumstances it may seem natural to expoit the moral implications latent in the vocabulary of the law and especially in words like ius, recht, dirito, droit wich are laden with the theory of Natural Law. (HART, 1997:208)
[4] First, it ignores my explicit acknowledgement that the rule of recognition may incorporate as criteria of legal validity conformity with moral princciples or substantive values; so my doctrine is what has been called ´soft positivism´ and not as in Dworkin´s version of it ´plain-fact´ positivism. (HART, 1997: 250)
[5] Such cases are not merely ´hard cases´, controversial in the sense that reasonable and informed lawyers may disagree about wich answer is legally correct, but the law in such cases is fundamentally incomplete: it provides no answer to the questions at issue in such cases. They are legally unregulated and in order to reach a decision in such cases the courts must exercise the restricted law-making function which I call ´discretion´.(HART, 1997:252)
[6] Under rules of the one type, which may well be considered the basic or primary type, human beings are required to do or abstain from certain actions, whether they wish to or not. Rules of the other type are in sense parasitic upon or secondary to the first; for they provide that human beings may by doing or saving certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations. (HART, 1997:81)
[7] Rules of the first type impose duties; rules of the second type concern actions involving physical movement or changes; rules of the second type provide for operations wich lead not merely to physical movement or change, but to the creation or variation of duties or obligations. (HART, 1997:81)
[8] The simplest form of remedy for the uncertainty of the regime of primary rules is the introduction of what we shall call a “rule of recognition”. This wil specify some feature or features possession of which by suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts. (HART, 1997:94)
[9] Thus we can record Hart´s fundamental distinction this way: a rule may be binding (a) because it is accepted or (b) because it is valid. (DWORKIN, 1978:21)
[10] This wil specify some feature or features possession of which by suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts. (HART, 1997:94)
[11] In a developed legal system the rules of recognition are of course more complex; instead of identifying rules exclusively by reference to a text or list they do so by reference to some general characteristic possessed by the primary rules. This may be the fact of their having been enacted by a spcific body, or their long customary practice, or their relation to judicial decision. (HART, 1997:95).
[12] Most rules of law, according to Hart, are valid because some competent institution enacted them. Some were created by a legistature, in te form of statutory enactments. Others were created by judges who formulated them to decide particular cases, and thus established them as precedents for the future. But this teste of pedigree wil not work for the Riggs and Henningsen principles. (DWORKIN, 1978:40).
[13] It is a feature of the human predicament (and so of the legislative one) that we labour under two connected handicaps whenever we seek to regulate, unambiguously and in advance, some sphere of conduct by means of general standards to be used without further official direction on particular occasions. The first handicap is our relative ignorance of fact: the second is our relative indeterminacy of aim. If the word in wich we live were characterized only by a finite number of features, and these together with all the modes in which they could combine were known to us, then provision could be made in advance for every possibility. We could make rules, the application of which to parcular cases never called for a further choice. Everything could be known, and for everything, since it could be known, something could be done and specified in advance by rule. This would be a world fit for ´mechanical´ jurisprudence.(HART, 1997:128)
[14] The third supplement to the simple regime of primary rules, intended to remedy the inefficiency of this diffused social pressure, consists of secondary rules empowering individuals to make authoritative determinations of the question whether, on a particular occasion, a primay rule has been broken. (HART, 1997:96)
[15] la teoria hartiana ruota intorno alla tesi, secondo la quale è possibile, utile ed assai auspicabile tener ben distinto il diritto dalla morale – facendo peraltro attenzione a riconoscere e a separare, in particolar modo nei discorsi giuridici, le descrizioni dalle valutazioni –; questa tesi, risalente al pensiero di Jeremy Bentham, è a sua volta fondata, per dirla in breve, sui convincimenti che non vi sia alcuna connessione davvero necessaria fra diritto e morale, e che l’individuazione del diritto dipenda da determinati fatti sociali. (MATTIONI, 2010:7)
[16] I am quite sure, never intended that judges have a strong sense of discretion. Of course, neither did he intend them to have only discretion in the weak sense either. In fact, I wonder if there is any weak sense of discretion. If I say to you, File these memos. How? Use your discretion, am I only saying, I nominate you to do it? I believe that Hart would grant a moderate sense of discretion to judges: that judges cannot decide a hard case just any way (hence they do not have strong discretion) , but within the parameters of the rules principles relevant to the case there is a legally unconstrained choise. (YANAL, apud IKAWA:99)
[17] it can be the case, thought it need not to be the case, that a norm´s consistency with some or all of the requirements of morality is a precondition for the norm´s status as a law in this or that jurisdiction. (KRAMER, apud DELAMAR:16)
[18] Thus, my doctrine that developed municipal legal systems contain a rule of recognition specifying he criteria for the identification of the laws which courts have to aplly may be mistaken, but I nowhere base this doctrine on the mistaken idea that ti is part of the meaning of the word ´law´ that there should be such a rule of recognition in all legal systems, or on the even more mistaken idea that if the criteria for the identification of the grounds of law were not uncontroversuially fixed, ´law´would mean different things to different people. (HART, 1997:246)
[19] This os made plain, or so I had hoped, both by my explicit statement in this book that the rule of recognition itself as well as particular rules of law identified by reference to it may hav a debatable ´penumbra´ of uncertainty. (HART, 1997:251)
[20] So whether the laws are morally good or bad, just or unjust, rights and duties demand attention as focal points in the operations of the law which are of supreme importance to human beings and independently of moral merits of the laws. Ir is therefore untrue that statements of legal rights and duties can only make sense in the real world if there is some moral ground for asserting their existence.(HART, 1997:269)
[21] But though this procedure certainly defers, it does not eliminate the moment for judicial law-making, since in any hard case different principles supporting competing analogies may present themselves and a judge will often have to choose between them, relying, like a conscientious legislator, on his sense of what is best and not on any already established order of priorities prescribed for him bt law. (HART, 1997:275)
[22] So the various branches of the professional approach to jurisprudence failed for the same underlying reason. They ignored the crucial fact that jurispridential issues are at their core issues of moral principle, not legal fact or strategy. They buried these issues by insisting on a conventional legal approach. But if jurisprudence is to succeed, it must expose these issues and attack them as issues of moral theory. (DWORKIN, 1978:7)
[23] The origin of these as legal principles lies not in a particular decision of some legislature or court, but in a sense of appropriateness developed in the profession and the public over time. (DWORKIN, 1978:40)
[24] We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principle require. We shall find that would construct these theories in the same manner as a philosophical referee would construct of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. (DWORKIN, 1978:105).
[25] You will now see why I called our judce Hercules. He must construct a scheme of abstract and concrete principles that provides a conherent justification for all common law precedents and, so far as these are to be justified on principle, constitutional and statutory provisions as well. (DWORKIN, 1978:116-117)
[26] we might treat law not as separate from but as a department of morality. (DWORKIN, apud DELAMAR, 2010:26)
[27] Hart, for example, says that when the judge´s discretion is in play, we can no longer speak of his being bound by standards, but must speak rather of what standards he ´characteristically uses´. (DWORKIN, 1978:34)
[28] But not any principle will do to justify a change, or rule would ever be safe. There must be some principles that count and others that do not, and there must be some principles that count for more than others. It could not depend on the judge´s own preferences amongst a sea of respectable extra-legal standards, any one in principle eligible, because if that were the case we could not say that any rules were binding. (DWORKIN, 1978:37)
[29] I propose, nevertheless, the thesis that judicial decisions in civil cases, evem in hard cases like Spartan Steel, characteristically are and should be generated by principle not policy. (DWORKIN, 1978:84)
[30] We must drop the reference to what is widely believed, so that the thesis becomes the thesis that discretion exists of two decisions are (not simply are believed to be) equally correct because neither party has a right to a decision in the matter. (DWORKIN, 1978:330)
[31] the rule of law is a nobler ideal than the rule of legal texts. (DWORKIN, 1978:338)
[32] Under the present system, we aspire that adjudication be a matther of principle, The aspiration cannot be fully realized, because each of us will think that judges sometimes, and perhaps often, make mistaken arguments of principle. But we gain even through the attempt. (DWORKIN, 1978:338)
[33] At any given moment judges, evem those of a supreme court, are parts of a system the rules of which are determinate enough at the centre to supply standards of correct judicial decision. These are regarded by the courts as something which they are not free to disregard in the exercise of the authority to make those decisions which cannot be challenged within the system. (HART. 1997:145)
[34] It cannot apply to the courts´ own statements of a legal rule. These must either be, as some extremer ´Realists`claimed, a verbal covering for the exercise of an unfettered discretion, or they must be the formulation of rules genuinely regarded by the courts from the internal point of view as a standard of correct decision. (HART. 1997:147)
[35] It is one thing to appeal to moral principle in the silly faith that ethies as well as economics moves by na invisible hand, so that individual rights and the general good will coalesce, and law based on principle will move the nation to a frictionless utopia where everyone is better off than he was before. (DWORKIN, 1978:147)
[36] There may be other principles or policies arguingin the other direction – a policy of securing title, for example, or a principle limiting punishment to what the legislature has stipulated. (DWORKIN, 1978:26)
[37] None the less, the life of the law consists to a very large extent in the guidance both of officials and private individuals by determinate rules which, unlike he applications of variable standards, do not require from them a fresh judgment frim case to case. (HART, 1997:135)
