A resposta correta em direito como expressão de uma teoria da decisão judicial constitucionalmente adequada

Abstract

In which way can we based on the juridical hermeneutic and from a proper constitutional pre comprehension, to obtain the right answer (s) in the law system ? This is the question by which the present paper goes over. And the aim of this work is to establish a theory of the judicial decision. The research will intent though, to show based on hermeneutic, the ways for the achievement of the right answer(s) on the Brazilian law system, yet wrapped on the positivist paradigm, from which derives a strong discretionary, which is so much more serious when, now a days it is made feasible based on principles created at random by the one who judges. From then on we try to allude the that the judicial decision in a last analyses, reveal themselves as constitutional jurisdiction acts, and that is why the judges must have a proper constitutional pre comprehension, about which we intent in addition, to make reference, to settle that the criminal decisions cannot forget that from the objective dimension of the constitutional rights, we have the penal right(penal code) as the protection mechanism, which is not therefore given to the legislator to renounce or to make insufficient; that on the judicial control of the administrative activity, from the acceptance of the directing character of our constitution. The judge hopefully will avoid the reductionism of the analyses to the mere legality, in which affected parameters of this exercise, that does not limits itself to the ways applied by the public entities, but guesses to the finalities that are constitutionally determined; that, in opposition to what has been advised by the common sense, on the private law, the so called general clauses do not amplify the discretionary power of the judges, because the principles when insert the practical world on the law, on the contrary of what is thought, do not open the interpretation, they close it; that the achievement of right answers in law, thats why constitutionally adequate, demands, in terms of lawsuit, the meeting of the constitutional warranties of the process.