A (crise de) fundamentação das decisões judiciais e a construção da resposta ao caso concreto

Abstract

This dissertation seeks to address the justification of judicial decisions, with special attention to practices perpetrated by the Brazilian legal community that may, even if not deliberately, reveal moments of discretion in the act of judging. The first part of the work aims to paradigmatically situate the state-of-the-art of legal theory, discussing the philosophy of language and post-positivism. Then, classical aspects of theories of interpretation are listed and philosophical hermeneutics is presented as the interpretative model consistent with the Constitutional State. Finally, a contribution to the theory of judicial decision is sketched out, approaching the reasoning of decisions and the narrative dimension of literature. The second part begins by relating justification with the legitimacy of the exercise of jurisdiction in a democratic state of law. Judicial activism is analyzed, and possible argumentative manipulations that can delegitimize the discourse of reasons are addressed. Shortly thereafter, some procedural aspects of the duty to motivate are treated: the principle of contradictory as the possibility of dialogue among parties, evidence-based trial, motivated persuasion and rules of experience. The principles of legality and consistency in the reasons for decisions are also subject of consideration. Finally, the work discusses the normative force of judicial decisions, seeking to alert how precedents can be inserted in the legal discourse without risk of discretionary judgments