O direito fundamental a racional justificação das decisões judiciais: da validade a efetividade

Abstract

The art. 93, IX, of the Federal Constitution of 1988 requires that every judicial decision be justified. Given this statement has been fossilized in the brazilian legal system the fundamental right to rational justification of judicial decisions, which more than justified only, must be backed rationally. This problem is developed in the cultural context of postmodernity, considering ramifications of this in the legal quadrants. The problem of the rationality of judgments won in relief in present times due to the fact that the legal system has been invaded by statements built on the basis of the legislative technique of indeterminate concepts. This technique, on the one hand horizontally expands the spectrum of effectiveness of prescriptive statements, on the other mitigates to some extent, the densification semantics of those statements, hence the difficulty of gauging the reasonableness of a decision, and the consequent doubt about the realization of the fundamental right sculptured in CF, art. 93, IX. In this paper will seek to address the problem of how can such a admeasurement. To do so, based on the model proposed by constructivism logical-semantic headed by Professor Paulo de Barros Carvalho, are fixed theoretical premises necessary to understand the confrontation developed in the text. The adoption of this analytical-hermeneutic model mind taking the legal phenomenon as language. Since then fixed to the idea that the wording in the prescriptive sculptured art. 93, IX of the Constitution conveys a fundamental right, as such, can never be vilified because of their fundamentality. To demonstrate the problem of what can be understood contemporaneously as rational decision, will be visited the theories proposed by the english Ronald Dworkin English, by the german Robert Alexy and Niklas Luhmann and by the finnish Aulis Aarnio. Set the minimum contours of what can be understood as rational decision passes to the systematization of those criteria regarded as enablers of control of that rationality. It is understood therefore that if a court decision meets those criteria, will be rationally justified, and thus will effectively been loaned to the fundamental right in sculptured art. 93, IX of the Constitution.