Decisão judicial e a teoria da justiça de John Rawls

Abstract

This work aims to investigate the problem of divergent judicial decisions handed down in similar cases. The research seeks knowledge of influences that are decisive for the production of a judicial decision, from the dominant legal theories to possible exogenous influxes to legal thinking, such as that involving epistemic injustice. In order to mitigate these decision discrepancies, an attempt was made to carry out an analysis of the interpretive procedure of the judge and the influences that this moment suffers, inserting in this process a method that is capable of reducing incoherence, inconsistencies and misunderstandings. For this purpose, it was decided to study John Rawls's Theory of Justice and the extent to which it could contribute to legal institutions in the production of judicial decisions that translate into legal certainty and that are coherent, symmetrical and fair. To reduce or solve this problem in the area of Law, of the Theory was extracted the procedure of Reflective Equilibrium, a methodological tool to collaborate with the decision-making process, mainly because in the study there was a demonstration that this method was a positive contribution to relevant deliberations in other areas of knowledge, such as advanced information technology and bioethics. Rawls's constitutionalism is approached for an understanding of what he thinks about the legal system, as well as fundamental concepts such as reasonableness, public reason, overlapping consensus and rule of law are studied for a better understanding of Rawlsian theory. Divergent decisions in similar cases, such as the supply of highcost medicines or those related to the criminal area, such as robbery, are paradigms in this research, and the reflective equilibrium method applied in the area of Law is proposed for a methodological production of judicial decisions, being an alternative for the decision-maker during legal reasoning or as a test after the decision-making process, aiming to be an instrument for clarifying elements that may influence this decision-making process, being able to discard elements that induce a decision that is tainted by reasons such as prejudices, emotions or beliefs. The thesis defended here is that John Rawls' method of reflective equilibrium can lead the judge of law along a clear and impartial path and be an instrument that can serve as a counterpoint to the problem presented about deliberative discrepancies issued in similar cases, being able to, therefore, establish coherence between the judicial decisions handed down by different judges.