O argumento judicial no common law e no civil law

Abstract

In the Science of Law, although there is no truth, it is accurate to recognise the existence of the correctness, accomplished by the argument when the discourse is regulated by rules. What is constructed, in the sphere of the rationally possible, ambit dominated by the ethos, is rational as long as guided by the discourse rules. Hence the culture expressed in the conclusion of the discourse can be universal. Bearing that in mind, the aim of this work is to analyse the argumentative proceedings constructed in the legal cultures of the common law and civil law comparatively. Considering the historical roots and evolution of such traditions, it is intended to draw conclusions regarding tendencies in the use of the argument which can be related to one or another legal thinking. It is possible that, due to the differences in the normative culture, the argumentative proceeding adopted in legal cases that discuss the same legal problem is diverse in the common law and civil law, even though endowed with rationality and therefore able to become universal because of the observance of the rules of the discourse. Using the inductive method, through the analyses of decisions from the American Supreme Court and the Brazilian Supreme Court, chosen to represent the common law and the civil law respectively, the hypotheses of this work was confirmed. It was concluded that there is prevalence in the use of precedents as arguments in the common law, whereas in the civil law the dogmatic and empirical arguments are the most frequent ones. The results demonstrate different levels of judicial openness to the dialogue: thinner in the common law; broader in the civil law.