Revista Brasileira de Arbitragem

Volume 7 (2010)

Volume 7 (2010) / Issue 28

Carlos Eduardo de Vasconcelos, 'Dialética nos Contraditórios Judicial e Arbitral: a Arte do Direito e Sua Regulação' (2010) 7 Revista Brasileira de Arbitragem, Issue 28, pp. 7–29


ABSTRACT: The objective of this article is to analyze the problems arisen by the contradictory in the ambient of the positivist law, in which dialectic - and, therefore, the intersubjectivity and dialogic rhetoric between the protagonists of the conflict - is underestimate and substituted by the artificial manicheaist by the alienating operators, under the selection of the authorities who had the jurisdictio­nal power. The author propose a recapitulation of the law, taking to account its aspect of art, efficient to reverse the logic of the judicial contradictory and, also, the arbitral, once the law have to be as support of the legal dialogic, doing its systematical and teleological role, and not like a law itself, as a system. A new contradictory, which is evaluative and collaborative, will make a bridge between mediate act, in its continued intersubjectivity and dialogic, and the law, in its systematic order, to give birth to the justice, as a legitimate force and socially efficient. The author support that the society belonging to the knowledge's era demand a legal culture, in which the regulate dialogical art consti­tutes the rule of law, with an ethic and pedagogic function, to give celerity and social effectiveness for the self and hetero compositions.

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ISSN: 1806-809X
ID: RBA2010057