JUDICIAL DECISION AND ARGUMENTATION: LIMITATIONS OF THE REASONING UNDER A SYSTEMIC OBSERVATION

Abstract

This article deals with the duty to justify judicial decisions and the role of argumentation increased with the Brazilian Civil Procedure Code of 2015. The research was developed considering grounds and arguments as a method of constitutional control of decisions. In the light of Niklas Luhmann's systemic theory and his contemporary reinterpretations, the objective was to analyze the openness and limits of the judge when deciding. By means of the inductive method and bibliographic technique, it was concluded that the current code imposes binding of the judicial decision to the specific case and requires a reasoning that indicates in a sophisticated way both the repetition and the innovation of the Law through the legal argumentation. Despite the operational limitations imposed on the Law System aimed at legal certainty, there is scope for the construction of a judicial decision within the exact limit of the validity of the reasoning and observance of the constitutional guarantee provided for in Article 93, IX of the Federal Constitution.

Keywords

• judicial decision
• argumentation
• reasoning
• systemic theory