Between the paroxysm of reasons and no reason at all: paradoxes of a legal practice

Authors

Keywords:

Legal Argumentation, superior courts, argumentation theory, rationality

Abstract

An analysis of court decisions of the Brazilian Superior Courts, according to the theoretical instruments of the Theory of Legal Argumentation, indicated a substantial deficit of rationality in the justifications produced by the judges on the reasons grounding their decisions. There is a notable difficulty in clearly establishing the links between the decision taken and the reasons behind it, as well as in associating it with other elements of the legal order (general rules and jurisprudential standards). Institutional and historical conditionings can serve as plausible explanations for this scenario, and the present article seeks to explore, even if only initially, some of the hypotheses to explain this characteristic of the Brazilian argumentative practice.

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Result of the analysis made on the research project financed by CNPq, named “Legal Argumentation and Rational Control: The ‘state of the art’ of justification in the legal decisions of the Brazilian superior courts”. English translation by Caio Martino.

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Author Biography

Claudia Rosane Roesler, Universidade de Brasília - (UnB)

Professor of Legal Theory and Legal Philosophy at the University of Brasilia. (http://lattes.cnpq.br/8239120259275298)

Capa da Revista Direito.UnB Volume 2, Número 1

Published

2016-01-01

How to Cite

ROESLER, Claudia Rosane. Between the paroxysm of reasons and no reason at all: paradoxes of a legal practice. Direito.UnB - Law Journal of the University of Brasília, [S. l.], v. 2, n. 1, p. 79–95, 2016. Disponível em: https://periodicos.unb.br/index.php/revistadedireitounb/article/view/24544. Acesso em: 24 nov. 2024.

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