A teoria da argumentação jurídica de Robert Alexy e a fundamentação das súmulas vinculantes: uma proposta para a fundamentação racional das decisões de aprovação de enunciados vinculativos à luz da teoria do discurso jurídico

Abstract

The duty of justify judicial decisions takes part as an important guarantee of the democratic rule of law, as provided by Article 93, IX, in the 1988 Federal Constitution and by numerous others rules. This duty requires that jurisdictional provisions delivered by any magistrate must be motivated, in order to enable ascertain the reasons underlying them and question their content. This justification cannot be the result of arbitrariness or based on judge's subjectivism, but requires the adoption of criteria for rational justification. Initially, this paper presents a study of the fundamentals and characteristics of Robert Alexy’s theory of legal reasoning, who intends to rationally justify a special case of normative statements: judicial decisions. Then enters the investigation of the key properties of súmulas vinculantes (binding precedents), concluding that the adoption, revision or cancellation of a binding statement, as a result of an objective process, configures a judgment of the Brazilian Supreme Court (STF), requiring therefore rational justification based on criteria reasoning. After that analyzes the approval debates of some súmulas vinculantes (binding precedents) in order to verify if the rules and forms proposed by Alexy are being properly applied as a criterion of correctness for the rational production of binding precedents by the Supreme Court. Given this, presents a proposal to improve the application of the postulates of Robert Alexy’s theory on the production of súmulas vinculantes (binding precedents), so that there is greater assurance about their rationality.