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Journal Article Details
Publisher Name: Global Science Press
Language: English
DOI: https://doi.org/10.3790/rth.52.4.377
Rechtstheorie, Vol. 52 (2021), Iss. 4 : pp. 377–419
Published online: 2021-10
AMS Subject Headings: Duncker & Humblot
Copyright: COPYRIGHT: © Global Science Press
Pages: 43
Author Details
| Section Title | Page | Action | Price |
|---|---|---|---|
| Marcelo Neves: The Prophet, the Disciples and the “Emissary”: Comments on Virgílio Afonso da Silva | 377 | ||
| I. Introduction | 377 | ||
| II. Difference between Theoretical Level, Doctrinal Application and Institutional Practices | 379 | ||
| III. The Meaning of the Metaphor “between the Hydra and Hercules” | 381 | ||
| IV. Rules, Principles and Hybrids | 384 | ||
| 1. Criticism of Generality as a Criterion for Distinguishing between Principles and Rules | 384 | ||
| 2. Towards a New Conception of Rules and Principles beyond Robert Alexy? | 386 | ||
| 3. Why Hybrids beyond the Types “Rules” and “Principles”? | 390 | ||
| V. Intra-principle collisions | 399 | ||
| VI. Why a Comparative Weighing? The Precariousness of Reason | 400 | ||
| 1. Affinity between “Best Answer” (Dworkin) and Optimization (Alexy) | 401 | ||
| 2. Precedents and ad hoc Balancing | 403 | ||
| 3. Comparative Weighting and Optimization | 405 | ||
| VII. On the Inconsistent Doctrinal and Judicial Application of Theories Regarding Principles and Weighing in Brazil and its Sociological Implications | 410 | ||
| 1. Concentrated – not Scattered – Criticisms of Virgílio Afonso da Silva’s Involvement in the Brazilian Debate | 410 | ||
| 2. Criticism of the Abuse of Principles and the Legal inconsistency of Brazilian Legal Doctrine and Practice | 414 | ||
| VIII. Why Judge Iolau? | 416 | ||
| IX. Conclusion: The Risk of Becoming the “Emissary” from a Prophet | 418 |