Processo e racionalidade: a necessidade de um modelo normativo para fundamentação do juízo de fato

Abstract

The 1988 Constitution imposes a duty to substantiate court decisions, including the conviction of the judge about relevant facts. Although the 2015 Civil Procedure Code has brought new rules on the grounds of the judicial decision with regard to questions of law, there are still no normative parameters in the national legal system to properly substantiate the factual basis. Starting from this problematic, seeking a greater rationalization of the judicial decision, the present work defends the need for a normative model to ground the judgment about facts. To this end, it analyzes the legal study of fact, the historical differentiation between questions of fact and questions of law and their possible overcoming in the model of cooperative process, going through the analysis of argumentation theory and hermeneutic theory to defend, within the perspective of normative positivism, that the positivation of parameters to substantiate the judgment is the best way to insure the constitutional model of process outlined by the 1988 Constitution.