Analise crítica do acordão do STJ (R-344):

uma dialógica entre as posições metodológicas de Castanheira Neves e Posner

Resumen

The present work analyzes the judgment of the Supreme Court of Justice that deals with an interpestive request for declaration of state of insolvency and exoneration of the remaining liability made by an individual. Starting from this specific case, the study has the scope of the legal methodology, aiming to carry out a dialog between the methodological position of Castanheira and Posner. Both methodological orientations clearly have a bias in opposition to formalism, given the consideration at the time of the judicial decision, of elements other than written norms, such as jurisprudence and doctrine. In the specific case under analysis, the decision takes into account non-legal factors such as the “ratio legis”, legal principles and jurisprudence. In this way, we will focus on a dialog between the methodological orientations defended by Castanheira Neves and Richard Posner. To achieve this purpose, a literary review by both Authors was taken as a source, as well as some positions of other scholars on the studied methods.