A corte (não) sou (só) eu: a responsabilidade individual e a integridade da decisão judicial colegiada

Abstract

In constitutional democracies, high courts are relevant institutional actors and, as such, they are submitted to ongoing integrity tests under filters of political morality. In Ronald Dworkin's philosophy, the theory of law as integrity highlights the legal interpreter's individual responsibility. In this sense, it may seem counterintuitive to use it as a priority theoretical tool for a normative study of judicial collegiality, especially in view of the fact that higher courts' decision-making dynamics are most often analysed under its depersonalisation assumption. This doctoral research tests the counterintuitive hypothesis of using the theory of law as integrity to guide a normative study of judicial collegiality. The main aim is to demonstrate that an adequate conception of political responsibility in the performance of a judge in high courts must derive from a normative theory of decision-making by a single judge. In an initial stage of this dissertation, some of the most relevant objections against the use of integrity in collegial courts are summarised, followed by a critical-reflexive approach to these criticisms. At a later stage, the research proposes a rapprochement between the theory of law as integrity and virtue ethics, such that together they can contribute towards establishing evaluative parameters of political responsibility for judges in high courts, as well as fostering certain normative aspects regarding the collegial judge's character formation. It was pointed out that approaching collegiate legal reasoning by virtue ethics makes it possible bringing to light important connections between decision-making theories and judicial ethical values that should surround the performance of judges in the courtroom. Given this connection, the study of virtuous character traits for law interpreters, and the corollary examination of their modes of acquisition, has a unique potential to provide the interpretative practice in the courts with a feasible and enriched perspective on political integrity. The notion of judicial role ethics is appointed as a key element in the claim to political legitimacy of high courts in the Rule of Law, suggesting a set of deliberative virtues conceived in accordance with the value of integrity. This includes the virtues of openness, non-individualism, transparent decision-making and interpretative regret.