A teoria da argumentação de Robert Alexy e a fundamentação das decisões judiciais (jurisprudência e comentários à tentativa de sua positivização no processo civil)

Abstract

The legal reasoning plays a fundamental role in civil proceedings, especially when the society and the law recognize the need and demonstrate intent to establish standards that aim to structure the judicial decisions that have to be all public and motivated. The sole paragraph of art. Project 477 of the Code of Civil Procedure (PL 166/10), although reluctantly, has the apparent purpose of positivize on legal procedural rule requiring that judicial decisions in certain circumstances, be more transparent and well prepared, in situations legislated in which the material is not presented sufficiently ready. The paper intends to present another proposal to the editorial device, something that best suits the current stage of the theory of legal reasoning. Promote It will then describe the theory of Alexy, to better understand its characteristics and purposes. After that, it will be far analysis of cases decided by higher courts, noting that the methodology and seized several Alexy's theory concepts are already used by case law from higher courts. Given this, the redactional proposals will be presented, establishes premises that, following its own criteria of rationality Robert Alexy's theory, should lead to activity before the judge conflicts between principles, vague legal concepts and general clauses.