The law that “springs from the ground”? Epistemological reflections on induction in legal science

Abstract

The present study examines the epistemological role played by the induction method in the normative concretization processes in Law. Thus, based on a bibliographical and documental research on the doctrine, jurisprudence and national legislation, it presents Law as a historical category, in the sense that its methodology is cognitively open to evolution, either by changes in the laws, or by the path of judicial laws, where the problematic character uses the induction as a direct force for building up judicial norms. The judicial decision studied (Special Appeal number 1.063.343), which comes from the Superior Court of Justice, expresses the direct force from the inductive procedures upon the (re)build of normative paradigms from the problems, highlighting the importance that the concrete problem (normative-wise) has in the development of Law, especially from Friedrich Müller’s perspective in ‘Law Structure Theory’. We also noticed this concretizing process is compatible with the judicial safety demand, in its contemporary meaning, and it is also presented as a source of inspiration and reference for the legislation’s update movements, as it can be seen in the new release of Article 976, sections 1 and 2, from the new Code of Civil Procedure.

Keywords: legal epistemology, induction, legal rulings, law structure theory, legal certainty.