LAW IN THE OPPOSITE DIRECTION OF LITERATURE: THE IDEA OF CREATION IN THE CONTEMPORARY PARADIGM
This article is part of the field of Law and Literature studies and aims at problematizing creative freedom in the judicial sphere. For that, it presents a diachronic synthesis of the concepts of creation as formulated by literary theory and highlights its articulation with the notions of intertextu...
| Main Author: | |
|---|---|
| Format: | Article |
| Language: | Portuguese |
| Published: |
Universidade Federal de Santa Maria
2017-12-01
|
| Series: | Revista Eletrônica do Curso de Direito da UFSM |
| Subjects: | |
| Online Access: | https://periodicos.ufsm.br/revistadireito/article/view/29566 |
| Summary: | This article is part of the field of Law and Literature studies and aims at problematizing creative freedom in the judicial sphere. For that, it presents a diachronic synthesis of the concepts of creation as formulated by literary theory and highlights its articulation with the notions of intertextuality and the horizon of understanding. Then the study refers to Pierre Menard, author of the "Quixote", a short story by J. Borges, to explain the conception – derived from the assumption of the hermeneutic paradigm - that literary invention results from the process of reading, interpretation and rewriting. Finally, it indicates the contexts that gave rise to the conceptions that postulate the freedom of creation of the law in the jurisdictional sphere, addressing, especially, the positions of M. Cappelletti on the creative performance of the judges. Such an approach makes it possible to note the anachronism of the theories of law that link the concept of creation to the idea of creative freedom - whose effects are activism and judicial decisionism - given the current understanding that literature theory has of the central role of interpretation in the creative process. |
|---|---|
| ISSN: | 1981-3694 1981-3694 |