A impossibilidade de afirmar um livre convencimento motivado para os juízes: as críticas hermenêuticas de Dworkin

This article demonstrates the unsustainability of a traditional view within the General Theory of the Process capable of defending the permanence of mere and insufficient duty of motivation of the judicial decisions. Thus, using a methodology aimed at reviewing literature on the subject, based on a...

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Bibliographic Details
Main Author: Pedron, Flávio Quinaud
Format: Article
Language:Portuguese
Published: 2018
Subjects:
Online Access:https://dialnet.unirioja.es/servlet/oaiart?codigo=6673438
Source:Revista de Estudos Constitucionais, Hermenêutica e Teoria do Direito (RECHTD), ISSN 2175-2168, Vol. 10, Nº. 2, 2018 (Ejemplar dedicado a: Maio/Agosto)
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Summary: This article demonstrates the unsustainability of a traditional view within the General Theory of the Process capable of defending the permanence of mere and insufficient duty of motivation of the judicial decisions. Thus, using a methodology aimed at reviewing literature on the subject, based on a critical historical reconstruction, we present the problematic reading of the thesis of free convincing motivated, based on a relation of adherence to an undemocratic procedural theory. Thus, it will be observed that the function of motivation is bound to an unconscious hermeneutic reading as to the occurrence of linguistic turn and attached to a positivist legal paradigm. Then, using the theoretical resources provided by Ronald Dworkin’s Theory of Law as Integrity, we demonstrate how the democratic procedural paradigm can be properly understood, overcoming both a Positivist Law Theory as well as an undemocratic process. The direct consequence is the overcoming of the idea of motivation and its substitution for the understanding of what is a justified judicial provision.Keywords: Free Judicial Conviction, Theory of Law as Integrity, Ronald Dworkin.