POR UMA TEORIA DA DECISÃO EM PERSPECTIVA GARANTISTA

Abstract

: In view of the reforms to procedural legislation aimed at reinforcing procedural guarantees of a constitutional nature, which have certainly been carried out in order to achieve due process of law, it is clear that all procedural acts need to be adapted to this reality, and especially the decision arising from the debate between the procedural subjects, which is why it is important to critically reflect on what theoretical support there is to support it. In this sense, this study seeks to develop discussions that permeate the foundations of a theory of judicial decision-making from a garantist perspective. To this end, two important dimensions that are part of contemporary constitutionalism will be analyzed, the first on a substantial level - garantist constitutionalism - and the second on a procedural level - procedural garantism. Both have as a common characteristic the structure of containment of state arbitrariness, especially the containment of judicial arbitrariness, allowing the construction of a theory of decision more in line with the models of the Democratic Rule of Law. The reflections made from the research allowed us to infer that, in the context of the theorization of judicial decision-making in contemporary states, the only one that seems to be able to contain state arbitrariness would be the one permeated by garantism. However, this assumption is not sufficient to guarantee the absence of arbitrary decisions. The two dimensions of garantism—garantist constitutionalism and procedural garantism — are not, in and of themselves, capable of curbing the arbitrariness configured by judicial discretion. However, they do allow for greater control of the acts practiced by judges and have the potential to limit voluntarist behavior. The infra-constitutional normative structure and respective application, despite the express indication of ordering, discipline, and interpretation in obedience to the fundamental norms of the Constitution, direct decision-making behavior and design a theory of decision that is incapable of preventing discretionary actions. However, these guidelines can serve as a means of improving the content of the decision. The research was carried out using the deductive method, partially exploratory, with a bibliographic and documentary survey, analytical-legislative research at home and abroad, mainly using Luigi Ferrajoli's Principia Iuris theoretical framework, as well as Brazilian procedural legislation, especially the Civil Procedure Code.