Lei de Introdução - Aula 08 - Subsunção Art. 4º do Decreto-lei 4.657/42

Summary

In this lesson, the instructor explores Article 4 of Decree-Law 4657/42, focusing on how judges make decisions when the law is silent on a matter. The concept of 'subsunsão' (subsumption) is explained, where a general law is applied to specific cases, such as a minor signing a contract or a divorce. The instructor also touches on the concept of 'integração normativa' (normative integration) when a law does not address a specific situation. This lesson provides a clear understanding of how laws, though general and abstract, apply to real-life cases and the role of judges in interpreting them.

Takeaways

• 😀 The lecture focuses on Article 4 of Decree-Law 4657/42, discussing how judges should decide cases when the law is silent or ambiguous.
• 😀 Laws are generally abstract and meant to apply to a variety of situations, not specific individuals or concrete cases.
• 😀 A concrete case is defined as a situation where specific people and events are involved, as opposed to an abstract legal principle.
• 😀 Subsumption occurs when a judge applies a general law to a specific case after determining that the law covers the situation.
• 😀 Example of subsumption: A minor under 16 signing a contract. According to the Civil Code, minors are absolutely incapable, so the contract is invalid.
• 😀 Another example: When a couple seeks a divorce, the judge refers to the Civil Code to dissolve the marital union as per the legal provision.
• 😀 A third example: When someone dies, the judge applies the law to determine the heirs, according to inheritance laws.
• 😀 The concept of 'integration normative' refers to the process where the judge supplements the law when it is silent or lacks a clear provision for a particular case.
• 😀 The first part of Article 4 of Decree-Law 4657/42 explains that when the law is silent, judges should base their decisions on analogy, customs, or general principles of law.
• 😀 The lecture concludes by stating that when the law applies to a specific case, subsumption happens; when it doesn't, the judge needs to supplement the law using integration normative.

Q & A

What does Article 4 of Decree-Law 4657/42 focus on?

Article 4 addresses the situation when the law is silent or omits specific guidance for a case. It instructs the judge to make decisions based on analogy, customs, and the general principles of law.

What does it mean for a law to be general and abstract?

A law is considered general and abstract when it is created to apply to broad, undefined situations rather than specific cases. It provides a framework to cover a variety of potential scenarios without detailing every individual case.

Can you provide an example of a general and abstract law from the script?

Yes. Article 3 of the Civil Code states that minors under 16 are absolutely incapable of performing certain legal acts. This law applies to all minors under 16, without specifying particular individuals.

What is a 'concrete case' in the context of law?

A concrete case refers to a specific situation involving defined individuals and facts. For example, a 15-year-old named Maria signing a contract is a concrete case where the general law about minors must be applied.

What does 'subsumption' mean in legal terms?

Subsumption is the process of applying a general law to a concrete case. It involves matching the facts of the case with the relevant legal provisions and applying them to that specific situation.

How does subsumption work in the case of Maria signing a contract?

In Maria's case, the judge would apply Article 3 of the Civil Code, which declares minors under 16 to be absolutely incapable of signing contracts. Therefore, the contract would be considered invalid.

What happens when the law is silent on a specific situation?

When the law is silent or does not provide clear guidance for a specific case, the judge engages in normative integration. This involves the judge filling in the gap using analogy, customs, and general legal principles.

What is normative integration?

Normative integration is the process by which a judge addresses gaps or omissions in the law by using analogy, customs, and general principles of law to make a decision.

How does the law handle divorce in the script's examples?

In the case of Ana wanting to divorce João, the judge would apply Article 1571, item 4 of the Civil Code, which states that divorce dissolves the marital society, thereby granting the divorce.

What does the script suggest about the role of the judge in applying the law?

The judge's role is to interpret the law and apply it to specific concrete cases, either through subsumption (when the law is clear) or through normative integration (when the law is silent or ambiguous).