Premises for judicial self-restraint: effects of gadamerian hermeneutics on private negotials relations

Abstract

The general objective of this article is to examine how hermeneutical guidelines of Gadamer can lead the Judiciary to a self-restrictive stance in its decisions, without hindering the interpretative freedom necessary for resolving negotials relationships in Private Law, where the autonomy of the will is more pronounced. Specifically, the text begins by explaining the problematic nature of the porous boundaries between Law and Morality, and the place of the latter within the former. Secondly, it discusses the interpretative legitimacy in particularly private negotials relationships. Finally, it assesses the (un)necessity of judicial decisions constituting a general theory for future cases that share solid similarities with the paradigm case. To test the working hypothesis, the analytical-deductive approach was used in the investigative stage, describing an approach that combined concrete analysis with the use of formal logic. The analytical method was used in the data analysis. The technique used in the aforementioned phases was bibliographic. As result, by way of final considerations, it was found, based on the research carried out, that Hermeneutics can establish guidelines capable of providing jurisdictional provisions with a minimally objective character, without this implying undue interference in the judicial function.