Virtudes humanas e decisão judicial: a relação entre sentenças justas e hábitos morais

Abstract

Throughout modernity, the concept of virtue was forgotten by legal discourse as positivism consolidated itself as a hegemonic legal system in the West. This forgetfulness caused a loss in clarifying how the judges decide. With the post-positivism, the analytical theories of legal argumentation and those of hermeneutic-philosophical root dispute the domain to instruct the judges on how they should decide, without any consensus. In recent decades, a theoretical alternative has emerged from the rescue of the classical-medieval tradition, founded on virtue ethics. The objective of this research is to verify whether this proposal is compatible with the current paradigm and effective in order to solve the incongruities generated by the superposition of philosophical traditions in law. In the end, it will be proposed to a reinterpretation of the Code of Conduct for Judges in the light of moral virtues. The research is qualitative and mostly bibliographic, using the diaphoretic method, suitable for the historical study of theories put into dialectical confrontation, to try to solve their internal aporias and extract more debugged solutions than the previous ones. The time frame begins in the Modern Age, focusing on the successive explanations of the adjudication elaborated since then. It is concluded, based on classical tradition, that prudence and other moral virtues – temperance, fortitude and justice –, more than intellectual virtues, are responsible for the judgment of adequacy between the facts and the norm aimed to do justice, constituting the central element of adjudication, whose normative incorporation is already found in the statutes of the Latin American judiciary, although pending greater doctrinal attention and methodological development.