Dworkin em três lições: Discricionariedade judicial, direito como integridade e jurisdição constitucional no Brasil

Abstract

Ronald Dworkin was an ardent critic of legal positivism and American pragmatism. To oppose such currents that often culminate in arbitrariness, he developed the conception of law as integrity, which is the subject of this paper. In this model, the applier of the rule, in the face of the so-called difficult cases, can arrive at a correct answer and its apprehension occurs through the systematic analysis of the principles. From this perspective, the general objective is to compare Dworkin’s proposal for constitutional jurisdiction to the current state of the art regarding possible conventionalism and pragmatism in Brazilian superior courts. The specific objectives are as follows: (i) define what judicial discretion is; (ii) outline what type of judicial discretion is plausible in a Constitutional State; (iii) explain the concept of law as integrity, together with that of chain novel; (iv) project these Dworkian categories to the Brazilian reality with a view to constitutional jurisdiction. Bibliographical research was used to analyze the primary knowledge, starting with the application of the deductive method, in the direction of premises, major and minor, until the conclusion. Ao fim, constatou-se a incompatibilidade entre o praticado pelos tribunais sob exame e a visão do direito como integridade para a manutenção do Estado Democrático de Direito.