Control of a bilateral and atypical procedural agreement: the need for a Dworkinian Hercules judge posture

Abstract

This study aims to understand new bilateral and atypical procedural agreements, examining a magistrate’s use of the dworkinian hercules stance in order to control legal transactions. Moreover, article 190 of the new Brazilian Civil Procedure Code (CPC) breaks the traditional rationalist paradigm of the previous CPC. In addition, this research uses the philosophical hermeneutic approach. In the end, this paper concludes that article 190 of the CPC is an indication of the paradigmatic break of the rationalist understanding, specifically with the creation of private autonomy sustained on the principle of self-rule. This study also notes that the magistrate responsible for the control of a bilateral and atypical procedural agreement has to be in the position of “being in the procedure” as it prevents the law from being inefficacious.

Keywords

• Racionalismo
• Juiz Hércules
• Dworkin
• Negócio Jurídico Pré-Processual Bilateral Atípico
• Novo Código de Processo Civil Brasileiro