A aplicação dos princípios jurídicos nas decisões judiciais e a necessidade de motivação: da menção genérica à aplicação motivada

Abstract

The development context of this research is centered on the application of the principles, as specific legal norms in the construction of the judicial decision, thus, the central question that we sought to answer was the following: considering that there is a repeated practice of applying legal principles terms in a generic way in judicial decisions, which methods/means can explain and specify the fundamentals of their application, in order to provide the parties with greater security, clarity and adequacy to the case in judgment? Thus, the general objective was defined as the understanding of the causes that lead to the generic application of legal principles in judicial decisions, in order to propose new possibilities for their use, based on a greater specificity of causes and motivations. In relation to the theoretical assumptions, was carried out the analysis of the case, jurisdiction and the evolution of access to justice and judicial provision. Subsequently, issues related to the court decision and the importance of its motivation were analyzed in order to present a theoretical-conceptual exposition and the process of application and foundation of the normative species. This research has a theoretical-empirical nature, focused on the improvement of legal practices, of an interdisciplinary nature, in which dialogues of contents and analytical methods were established between: the General Theory of Law, the History of Law and Legal Hermeneutics. The dialogue between the disciplines was established from a perspective of complementarity of the critical-methodological aspect with elements of the legal-sociological aspect, and the hypothetical-deductive reasoning was used in a dialogical process with other models of reasoning, from a constant epistemic interaction, prevailing the qualitative approach. From the research it was possible to conclude that the judicial decision needs to meet the context of justification, and that absence or incompleteness of motivation can lead to nullity of the decision. As regards the principles, the absence of adequate reasoning empties the content and functionality of the decision and removes the specific regulatory force that justifies their application and the creation of an in concrete norm.