Processo civil e filosofia : o formalismo-valorativo como concretização de uma teoria filosófica da democracia

Abstract

Based on the understanding that dogmatic-operative content of civil procedure finds its rationale in the general theory of law and of procedure and, even more, in the philosophy of law, this paper proposes to review the science of law in conjunction with philosophy of law by a cooperative approach on those knowledges, which allows an wider and critical vision of the legal phenomenon. Fixed this first premise, it identifies the formalism-evaluative as a legal methodology that best explains the Brazilian Civil Procedure at the days; and the communicative democratic philosophy, which is approached from the thought of Jürgen Habermas by its representative as the philosophical foundation of Brazilian law today. Thus, associating science of law and philosophy of law, the formalism-evaluative is shown as the achievement in the legal world of Habermasian democratic philosophy and is the object of analysis in three aspects, namely: participation in the process, criticism of the legal positivism and concern for legal certainty. Regarding the first point -participation in the process -it appears that Habermas's philosophy and methodology of legal formalism-evaluative converge to a essential participation in the process, as Habermas shows a concern in the formatting of a fully democratic state, without, however, work the participation in the intra-procedural, because of its philosophical approach, while the formalism-evaluative performs the analysis under the internal point of view of the process through the ideal of cooperation between the subjects of the process, with a duty of debates and the right of persuasion. Consequently, the study undertaken wins the rationale and densifera procedural matters, providing contributions such as the expansion of the amicus curiae. In the second aspect -criticism of positivism -there is also convergence between Habermas's philosophy and methodology of formalism-evaluative, as he rejects the legalism of positivism for its failure to legitimate the law, trampling the legitimacy on the participationof all that are concerned, while it seeks to overcome legal positivism or an internal point of view of the case to see the limitations of positivism in the interpretation of the rules. That occurs because, in actuality, there is the need to correct the constitutional standards infrastructure in accordance with the Constitution, implementation of principles in general, open clauses and legal concepts. Finally, the concern about legal certainty, the third aspect of analysis is observed at the thought of Habermas by maintaining the right democratically legitimated, that is, the discourses of reasons, which limit the speeches of application -unique of the executive and judiciary -and, in turn, in the formalism, the evaluative mind to the preservation of legalvalues, fostering a correction of the forms that may violate procedural guarantees, without incurring a surrender to the certainty, because it takes a starting point for such a correction the right post, especially the constitutional and fundamental rights. Thus, under the three aspects investigated, there was the realization of ideas Habermas, rational basis of current Brazilian law, through the methodology of legal formalism-evaluative.