A retórica dos princípios: do ativismo judicial ao panprincipiologismo na argumentação jurídica brasileira

Abstract

The present work investigates the action of emotion and intuitive factors in the judges' decision-making process. The common notion that the judge reproduces the meaning contained in the law and extracts from that the only correct answer echoed in theories of legal argumentation based on the interpretative method as the sure way to find the most rational and appropriate solution to the case. This belief, rooted in the idea that the legal order is a complete and closed system in which there is only one possible hermeneutic solution, is confronted by the question whether juridical discourse is rather a tool to legitimize the prior opinions of the interpreter than a procedure for correcting the validity of the premise initially chosen. Indeed, judicial activism emerges as an outward manifestation of this reality, in which sentences contrary to the law are deferred to satisfy personal conceptions of rights, emptying the objective of a juridical science that is rationally controllable. Recently, in Brazil, the abusive use of principles as a definitive criterion for the foundation of judicial decisions has made this activist posture hide by the rhetorical mantle inherent to them, making difficult to build a theory of argumentation that effectively limits the interpretative field of the judge. On the assumption that judges, based on preconceptions, decide even before the trial, the study of controversial judgments in courts is indispensable to answer as a legal decision really occurs. It is concluded, then, that law, as a pragmatic-argumentative science, has in ideological self-knowledge of the interpreter and in legal discourse auditoriums the most effective means of inhibiting judicial voluntarism, as opposed to the classical methods of juridical interpretation, which supposes neutrality forward the facts.