Elements for a debate on the judicial decision in “difficult cases” : the state of exception in the shadow of the law

Abstract

This paper aims to explore and work the theory of Herbert L. A. Hart, regarding theinterpretation of hard cases, taking as basis the statement of David Dyzenhaus that there is a"mini" state of exception in judicial decisions executed in the shadows of the law. From thiscontext, it explores the concept of the state of exception and its characteristics through the workof Giorgio Agamben, when it prepares the ground for the main hypothesis is that its connectionto the theory of law Hartiana the penumbra. After it is with the basics of his theory about thediscretion that aims substantiate the hypothesis Dyzenhaus until finally working hypothesisraised by David Dyzenhaus, in order to verify the feasibility of the decision in the shadows of thelaw being an exception environment and, further, if this can really lead to what might be calledthe dictatorship of the judge. Developed by theory, with emphasis on literature, the research, aswill be seen, revealed in dialectical relation to the objectives and the method of deductiveapproach.