O dever de motivação das decisões judiciais na perspectiva do contraditório substancial

Abstract

The present dissertation aims to solve the following problem: in the perspective of the guarantee of a substantively contradictory process – here understood as a fundamental guarantee that the addressees of jurisdictional actuation can effectively influence the decision to be taken –, is the judge or court obliged to expressly consider all the arguments brought by the parties? It utilizes the deductive method and starts from an affirmative hypothesis to the purposed problem. Based on Viehweg’s juridical topics and Perelman’s new rhetoric, it asserts, first, that the decision for the concrete case is taken by means of dialectical argumentation and must be, simultaneously, conformable to the positive law and morally and socially fair. Then, the study analyzes the constitutional guarantee of a contradictory process, relating it to the democratic principle and presenting its two dimensions: the formal one, which corresponds to bilateral hearing, and the substantive one, related to the possibility of the parties effectively influence the decision to be taken. Finally, it analyzes the duty of motivation of judicial decisions and asserts, in conclusion, an affirmative answer to the proposed problem.