Racionalidade tópica e concretização do princípio do melhor interesse da criança e do adolescente

Abstract

The object of study of the present thesis is to examinate the princple of the child’s best interest, wich integrates brasilian legal order, under the focus of Theodor Viehweg topic rationality. With the wars that afflicted Europe and the world in the beginning of the twentieth century, legal theory and its logical-deductive system, derived from apodictic rationality, couldn’t sustain as illicit the totalitarian orders installed and the atrocities committed. Therefor, the basis for legal positivism started to be rethinked during the second half of the century. Legal rationality needed to rearticulate between law and values. In such context,Theodor Viehweg publishes Topic and Jurisprudence in 1953, that introduces a project for rescueing topic rationality as an alternative to rethink legal theory. His thesis consists in admiting that the jurist finds topoi, reference points in the speech that are legitimated by historical acceptance of these values that they disseminate, providing coherence and adequability to the legal order, according to the particularities of the case. The childhood law, regulated by the Statute of Child and Adolecescent, affirms the full protection doctrine, that has as main principle the child’s best interest. With that, the judicial procedure, wich has the poer to materialize such parameters, very often breaks with the traditional systems dogmas. To break away from the regular systematic, the competetent judge to materialize the best interest principle has to build arguments corroborated by values that bring a close proximity to topic rationality, as described by Viehweg. The thesis problem is to investigate the uncompatibility between these break points that appear in child’s law decisions and the logic-deductive legal system. The hypothesis is this happens because, to guarantee the child’s best interest, the judge creates acceptable arguments based on values, the topoi, wich brings this area of the law closer to topic rationality. The research is bibliographyc, altough takkes advantage from judicial and empirical data to better corrobate the author’s hypothesis.