O novo Código de Processo Civil e o direito fundamental a respostas motivadas: um debate entre Ronald Dworkin e Robert Alexy

Abstract

With the advent of the new Code of Civil Procedure (Federal Law nº. 13.105/15), serious changes occurred at the heart of Judicial Decision Theory with the insertion of a system of judicial precedents with binding force or effectiveness, requiring Brazilian courts and monocratic judgments a high harmony with the reasons to decide of the jurisprudence homeland. In this scenario, the system of precedents comes to fulfill the fundamental right of the citizen to have the decisions emanating from the Judicial Branch duly substantiated, in terms of the prediction inserted in art. 93, item IX, of the Federal Constitution. Not unreasonably, the thesis of Ronald Dworkin, with its theoretical formulation of law as integrity and its commitment to the production of a right that respects coherence, and of Robert Alexy, with his An argumentative thesis that has in the technique of weighing of interests its apex with wide grant of discretion to the judge. In fact, analyzing carefully the new code, several legal devices that encamp the theses of the renowned authors stand out, with emphasis to art. 489 of the procedural legislation in question, certainly the most controversial article of the novel codification. Therefore, the theoretical mix existing in the aforementioned device of the theses of the two authors in question is perceptible. Thus, the influence of Dworkin was pointed out for the construction of §1 of this device and the insertion of Alexy's weighting in §2 of the same article, being defended here the unconstitutionality of the weighting to the Brazilian in the bulge of the new legislation.