The Difficulties on Linking Judicial Decisions to Precedents. The Need for Going Beyond a Descriptivist Approach of the Decisions Theory

Abstract

The current work intends to examine, without any pretension of exhausting the topic, the problem caused by linking practical difficulties of first degree judiciary to previous higher courts that currently stands as magic formula around the law reform process regarding the establishment of rules of development of judicial decision. The recognition that the right is built by the law judges, every day and every decision, as praxis, becomes immediately apparent the difficulty of immobilization of this activity by the assumption of stare decisis, as hermetically markers to expand the understanding of the dogmatic. Considering the Theory of Judicial Decision from the perspective of American legal realism, particularly in the work of Benjamin N. Cardozo, it will be observed that the descriptivist design is insufficient to require going beyond the dogmatic limits for conjunctural and zetética analysis allow to reach a prescriptive approach to how judges should decide. In this context, use of the theory of moral rights of Dworkin compared the effectiveness of decision because even if having redefined the concept of discretion, was still insufficient, despises the pragmatist look of the future, which would allow better understanding of Community principles and behavioral standards used by judges in "cauldrons of the courts". In fact the creation of law, is not so mechanical or unruly but derives from a specific experience lived by the magistrate, able to recognize much more the legislature, or the understanding of the supreme courts are prevented from seeing facts, circumstances involved in social conflict, allowing to know and solve the specifics to point to the shortcomings of the previous binding regulation that not only may, but it must be modified before the need to improve more and more the authentic by excellence.