Julgando para as multidões: legitimidade judicial e argumentação jurídica em uma comunidade polarizada

Abstract

This thesis discusses the matter of judicial legitimacy, focusing on two challenges currently faced by the judiciary to protect it: firstly, judges often have to deal with cases of difficult solution, for which the traditional resources of legal interpretation do not apply; second, they have to deal with a polarized society, marked by the presence of moral disagreements. The two challenges, taken together, assume the form of a dilemma: at the same time that they create for judges the need to formulate a substantive legal response to these complicated and conflicting cases, they also create the need for them to convey to the community the sense that they are deciding on behalf of everybody, as agents of the State. An adequate solution to the dilemma would be one that would provide interpretation criteria capable of mitigating legal imprecision and reinforcing the legitimacy of judicial action before the community. “Principled” approaches claim to offer a solution of precisely this kind. According to them, by resorting to legal principles and moral discourse to decide complicated cases, judges would be able to solve the dilemma. Those approaches are proposed by important authors, such as Alexy and Dworkin, and have great influence on contemporary legal practice. The aim of this thesis is to present the normative foundations of the “principled” approaches and then make a critical assessment of them, investigating whether they offer the best solution to the judicial dilemma. It is proposed that the “principled” approaches have two important assumptions: the notion of modest objectivity and the idea of convergence between rational agents, which would imply a non-metaphysical foundation for the “principled” discourse, capable of creating trends of moral approximation among community members. The question is whether the use of such a strategy to resolve the legal dilemma is the most appropriate. The thesis claims that the “principled” theories are departing from a tremendously optimistic conception of the powers of moral discourse to improve society, which is not necessarily compatible with observable trends in people's tribal behavior and motivated reasoning. Optimism becomes problematic when it fosters the large-scale legal application of theories that, if for some reason are shown to be incorrect or misguided, will exacerbate social disagreements, doing more harm than good to judicial legitimacy. In the end, the thesis recommend the adoption of an alternative conception of normativity as a basis for legal discourse, which would be less risky than that of the “principled” theories and would seek pragmatic, concrete and moderate solutions to the judicial dilemma.