O uso do argumento de autoridade por tribunais superiores: a teoria da autoridade de Joseph Raz e a legitimação de decisões

Abstract

This research seeks to understand the role of the argument from authority used by superior courts in an attempt to legitimize definitive judgments. To do so, I try to draw a link between the respect for moral autonomy and the acceptability of normativity in each society, tracking how the legal system works. For that reason I use notions such as reasons for action, authoritative decision, content-independent justification and internal point of view, trying to draw a retrospect of legal positivism development over time. By this reason, I have used Joseph Raz theory of authority to make possible to formulate a response to a series of questions concerning the normativity and legitimacy. He defines authority as that person or institution whose normative power makes possible to replace personal reasons of those who are subjected to it by his own reasons, producing benefits for both parties, since the authority was entitled to do that. Moreover, Raz draws a line between de facto and de jure authorities, establishing the importance of the justification of power in the relationship among citizens and rulers. His starting point is therefore the assertion that every legal institution can legitimize itself by establishing a connection between the authoritys decision and the community inherent moral sense, defending an a posteriori legitimation as possible. In his theory, there is a dependent connection between the legal reasoning used in the case and the communitys internal point of view, as well as in the legal decisions of political nature that need to be taken in certain contexts or situations. During the research it was noted that courts should, in the operative sense, achieve the best morally possible result, since they do not act in their own name, but inside a political society in which they work. This process occurs independently of the connections which have originated the fact who acts as an absolute legitimizer. By this way, it is necessary to take a series of measures, considering the individual character of each trial, in order to legitimate decisions and connect them with the jurisdictional and jurisprudential context of their society.