A formulação de uma teoria da decisão à luz do CPC/15: uma revisitação filosófica de Dworkin e Habermas

Abstract

With the advent of the Brazilian Civil Procedure Code of 2015, there was a constant revisiting of judicial decision theories and this importance in the construction of a coherent, stable and integral system. The purpose of this work tilted to premises that permeated in the mentioned legal text, which collaborates with an philosophical analysis, which provided a development of a decision theory adequate for the Brazilian environment, especially compatible with the institutes of Brazilian Civil Procedure Code of 2015. Organized in four parts, the work will begin with the exposition of Ronald Dworkin's main proposals, as well as philosophical conceptions that he sought to debate. Aiming to provided an increment to the ideas and thought of dialetics thoughts, in a second moment, the Philosophy of Communicative Action of Jürgen Habermas, will show up to give a procedural perspective for the judicial decision theory and oppose himself to some theses of Dworkin, which will make possible the defense that the best judicial response will come from an overlap between the proposals of the aforementioned authors. Beyond the debate in the philosophical field, which will present sufficient theoretical support for the application of the deductive method, the Brazilian Civil Procedure Code of 2015, exalted by the incorporation of foreign theories, will be placed as a mean adopted to provide the construction of better decisions, in the third part of this work, when doctrinal controversies arising from its text will be exposed. In the last chapter, it's time to seek a pragmatic analysis of the referenced institutes of the mentioned code, as well as their problems of interpretation based on Habermas and Dworkin's proposals. With all these ideas, it becomes possible to consider to elaborate a judicial decision theory for Brazilian law, as long as it is constantly worked on by the law operators will be possible to provide the much-acclaimed justice.