Fundamentação das decisões judiciais e interpretação jurídica: estudo comparativo entre as contribuições da hermenêutica filosófica de Gadamer e do Modelo Toulmin de argumentação racional

Abstract

The objective of this paper is to analyze the contributions of the Toulmin model of rational argumentation to the question of the basis of judicial decisions, as a way of increasing the effectiveness of this constitutional guarantee and qualitatively improving the provision of judicial protection. It examines the nature of the duty to reason-giving for judicial decisions, both in its constitutional and in the innovation brought by the Civil Procedure Code of 2015, which, among other things, aimed to give a better regulation to the matter. The problem, however, is too complex to be treated only in dogmatic terms, so an investigation in the hermeneutic literature, especially Gadamer, Esser and Kaufmann, was carried out to verify the real contributions and limits of the hermeneutic proposal as a solution to the problem of judicial decisions' legal reasoning. Next, the Toulmin model is presented as a rationality method for judicial decisions analysis, because it has features that highlight the defeasibility of arguments and allows, in addition to identifying the elements and challenges necessary for the formation of an argumentative structure, a way to verify the Degree of strength of each, escaping from the false dilemma of the validity or invalidity of the arguments. Finally, a series of votes emanating from the Federal Supreme Court is sought in order to seek an argumentative pattern and, with it, to point out problems and suggestions for their solution, with the purpose of promoting improvements in the provision of guardianship Jurisdiction.