A nova retórica e o modelo Toulmin de argumentação: aplicações à fundamentação das decisões judiciais

Abstract

This present paper has the purpose of analyzing the use of the Toulmin model of argumentation as a possible tool capable of fulfilling the functions that modern rhetoric attributes to the basis of judicial decisions. In order to do it, a historical verification of classical rhetoric is carried out, approaching its evolution until the systematization of its study by the works of Aristotle. Afterwards, there is an analysis of Theodor Viehweg’s Topics and Law and of the contributions made by João Maurício Adeodato, with emphasis on the division of rhetoric in three: material, strategic and analytical. Following, it adopts the paradigm of the New Rhetoric of Chaïm Perelman and Lucie Olbrechts-Tyteca in its analytical use. Then, from the perspective of rhetoric, it is examined the duty to reason-giving in judicial decisions under its constitutional and procedural biases and its inherent issues, focusing on the changes listed in the Code of Civil Procedure 2015, which specifically states about the matter. In addition, the paper studies the work of Stephen Toulmin, beginning with the criticism he formulates to the classic forms of argumentation and arriving at his argumentative model, whose function serves not only to verify the arguments according to their degree of strength, but also to help in the construction of arguments from its structure. Furthermore, an analysis is made of how the use of the Toulmin model can contribute to the fulfillment of the rhetorical functions of legal reasoning in what concerns the duty to reason-giving in judicial decisions. Finally, the work deals with the points of contact between the works of Chaïm Perelman and Stephen Toulmin and their applicability to Law, aiming to promote improvements in the provision of judicial protection and in the external control of the decision-making activities of the Judiciary.