As dimensões paradigmáticas da fundamentação das decisões judiciais: filosofia, história, direito e de como a (in)compreensível resistência ao dever de fundamentar é uma questão de paradigma

Abstract

Reflecting on the judicial decision from the perspective of the grounds of judgment, this study has as one of its objectives to demonstrate that, besides constituting the act that ends the process, the judicial decision, as long as it is based on the terms established in the Brazilian Federal Constitution, in its article 93-IX, and in the Brazilian Civil Procedure Code, in its article 489, §1, is a complex act that legitimizes itself. This conception is based by paradigms that act as binding elements, here called significant paradigmatic dimensions, in the construction of the meaning given to the obligation to state substantiate its decisions. These paradigmatic dimensions constitute, from three different perspectives, the structure of the of the grounds of judgment from the philosophical, historical and legal point of view, hence their structure is three-dimensional and also is ontological, because it refers to the sense of being of the duty of reasoning. In the model of Democratic Rule of Law, it will be the presence of all these dimensions, properly aligned with that model, which will make a judicial decision to be grounded. Because they are structuring elements, it is by the way they are presented that, when a court decision is well-founded, a hypothesis that will translate into a hermeneutically adequate response to the concrete, the case will be directly justified in the Federal Constitution. The absence or the inconsistency of one of these elements, as well as the incompatibility with the State model, will imply the nullity of the decision due to lack of reasoning or defective reasoning. Because it is a conception crossed by paradigms at different times and throughout history, will influence the construction of the sense of a judicial duty and the foundation of will be based on three pillars of support - and, in this thesis, will be show that each of them, the paradigmatic dimensions, has a meaning and represents a passage or a paradigm shift. It is this understanding that determines the way in which the dogmatic legal system welcomes the details of the grounds for judicial decisions, established in §1 of the article 489 of the Brazilian Code of Civil Procedure, which, by establishing a direct connection with the Federal Constitution, realizes and concretizes the constitutional norm prescribed in item IX of article 93, which is why, by combining the elements that make up the triple dimension of the grounds, this legal provision identifies the best expression of the paradigmatic character of the reasoning of judicial decisions, since, reflecting the impact of the three dimensions: (i) it presupposes the adoption of a process as a contradictory procedure, characterized by a set of preparatory acts aimed at the practice of a final provision, the sentence, as a result of a public discourse, of an intersubjective and shared practice, reflecting the overcoming of the subjectivity paradigm by the intersubjectivity paradigm (philosophical perspective); (ii) reflects the shift from a conception of legitimacy of the judicial decision based solely on the argument of authority, or as an act of will, to a need, by virtue of the political responsibility that the judge assumes, of accountability (historical perspective); (iii) indicates the movement of displacement from a way of conceiving the legal phenomenon with a more private way of thinking towards a public way of doing it, constitutionalized and democratic conception of law, consecrating its autonomy and its triumph over the external agents that intend to correct it (legal perspective). Due to its paradigmatic character, it can be said that all the conditions considered indispensable to consider a decision well-founded can be universalized, which points to the fact that the aforementioned legal provision constitutes a general duty of the entire Brazilian judiciary, although the resistance to its application is not ignored, this research is developed from the perspective contrary to the resistance to the detailing of the duty to the grounds of judgment contained in the article 489, §1, of the Brazilian Code of Civil Procedure, the need to confront it, and the possibility of overcoming in the light of philosophical hermeneutics, even though it is recognized that an (not)understandable resistance to the duty to ground is a matter of paradigm.