A busca por uma decisão judicial constitucionalmente adequada e a necessidade de subjugação da jurisprudência dos valores aviltadora dos (pré)compromissos

Abstract

This paper aims to analyze the problem regards the degradation of (pre) commitments - taking as background the Court of Values - caused by the attachment of the right to the paradigm of subjectivity, in order thereby to make a critique of discretion and will, defending the reasoning of judicial decisions as a means to maintain a democratic state. The study proposes to demonstrate that ignoring the historical context in which the Court of Values was developed, it is brought to Brazil, becoming widely used uncritically, showing, as a result, the importance of overcoming Enlightenment conception assujeitadora - typical subject-object schema - and the relevance of assimilation by the law of development of philosophy. Evidence, finally, that constitutionally adequate decisions must take into account the issue of tradition, consistency and integrity and the right part of understanding the motives which led the judge to decide for or against your favor.