A ANTINOMIA REAL E A POLÊMICA DO DIÁLOGO DAS FONTES

Maria Helena DINIZ

doi:10.21902/revistajur.2316-753x.v3i56.3575

A ANTINOMIA REAL E A POLÊMICA DO DIÁLOGO DAS FONTES

Revista Juridica ◽

10.21902/revistajur.2316-753x.v3i56.3575 ◽

2019 ◽

Vol 3 (56) ◽

pp. 228

Author(s):

Maria Helena DINIZ

Keyword(s):

Legal System ◽

Normative Conflicts ◽

Technical Considerations

RESUMONeste artigo, apenas, traçaremos considerações científicas ou técnicas sobre a questão dos conflitos normativos e da polêmica criada pela teoria do diálogo das fontes de Erik Jayme, temas que engendram complexidade por não estarem bem estruturados doutrinariamente. Ante a impossibilidade de o legislador conhecer todas as normas existentes no ordenamento jurídico é plausível a edição de normas antinômicas. A existência de conflitos normativos consiste num convite para esclarecer não só os limites e as funções do jurista e do aplicador em prol da solução das antinomias aparentes, e reais, mas também o papel exercido pelo dialogo das fontes na interpretação corretiva.PALAVRAS-CHAVES: Antinomia aparente; Antinomia real; Critérios e metacritérios solucionadores; Diálogo das fontes; Interpretação corretivo; equitativa.ABSTRACTIn this article, we will only draw scientific or technical considerations on the issue of normative conflicts and the controversy created by Erik Jayme's theory about the dialogue of sources, themes that engender complexity because they are not well structured doctrinally. Given the impossibility of the legislator to know all the existing norms in the legal system, it is plausible to issue antinomic norms. The existence of normative conflicts consists of an invitation to clarify not only the limits and functions of the jurist and the applicator in favor of the solution of the apparent and real antinomies but also the role played by the dialogue of sources in the corrective interpretation.KEYWORDS: Apparent antinomy; Real antinomy; Solving criteria and metacriteria; Dialogue of sources; Corrective; equitable interpretation.

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Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis

Nordic Journal of International Law ◽

10.1163/1571810054301022 ◽

2005 ◽

Vol 74 (1) ◽

pp. 27-66 ◽

Cited By ~ 49

Author(s):

Anja Lindroos

Keyword(s):

Human Rights ◽

International Law ◽

Legal System ◽

Study Group ◽

Environmental Regimes ◽

International Legal System ◽

Normative Conflicts ◽

Fragmentation Of International Law ◽

Institutional Fragmentation

AbstractThe increased fragmentation of international law has been accompanied by a more problematic phenomenon: institutional fragmentation that has strengthened the role of specialised regimes (e. g., WTO, EU, human rights and environmental regimes) within the international legal system. "The emergence of seemingly independent subregimes has given rise to a number of legal concerns – among these is the existence of normative conflicts between regimes." In a recent report by the Chairman of the ILC Study Group on Fragmentation of International Law, Martti Koskenniemi, dealt with the role of the lex specialis maxim as a means of addressing the relation between selfcontained regimes and general international law. This article argues that an application of lex specialis, although widely accepted, is impeded by its conceptual vagueness. Lex specialis may be well-suited to resolve certain types of normative conflicts, such as conflicts within sub-regimes, which may be viewed as a more traditional manifestation of normative conflicts. The fragmentation of international law, however, has also created new types of conflicts, namely those between different, seemingly independent normative orders. The article suggests that the lex specialis maxim is a less-suitable approach to normative conflicts between such unrelated normative orders. In a fragmented legal system such as that of international law, these types of conflicts may, accordingly, prove a particular challenge.

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Bankruptcy vs. Environmental Protection: A Case Study in Normative Conflict

Canadian Journal of Law & Jurisprudence ◽

10.1017/s0841820900002010 ◽

1998 ◽

Vol 11 (2) ◽

pp. 245-276

Author(s):

H. Hamner Hill

Keyword(s):

Environmental Protection ◽

Legal System ◽

Policy Objective ◽

Policy Goals ◽

American Law ◽

Normative Conflicts ◽

The Law ◽

American Legal System ◽

Significant Attention

Environmental protection laws are a recent legal development. As soon as these statutes first began to appear, it was evident that the fundamental principles of environmental protection would conflict, at some point, with fundamental principles from other, older, substantive bodies of law. In the American legal system, nowhere has the conflict been more serious than between environmental protection law and the law of bankruptcy. While this problem has attracted significant attention in the law reviews, it has been little noticed outside legal circles. This conflict sheds important light on the nature of normative conflicts generally, and points to the need for a well-developed theory of conflict resolution which courts can use when deciding cases. The root of the problem lies in a conflict between the underlying policy goals of these substantive bodies of law such that satisfying one policy objective necessarily undercuts the other. As such, the conflict between bankruptcy and environmental protection should be classified as a normative collision. This discussion examines this normative collision as it exists in American law in some detail. Such an examination provides interesting insights into the nature and pervasiveness of normative conflicts in our legal system. It also serves to illuminate both the theoretical and practical need for a coherent, well developed mechanism for resolving normative conflicts when conflicts arise.

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