Colegialidade em xeque: uma análise procedimental dos modelos de deliberação judicial

Abstract

The judicial deliberation model adopted in Brazil is seriatim, composed of an aggregation of votes that, when consolidated, form the ruling. The 2015 Code of Civil Procedure favored a strict format in procedural cooperation, forcing court judges (interna corporis) to carry out a collegiate trial. This claim to apply intersubjectivity in the courts is similar to Jürgen Habermas's procedural model of judicial decision-making, where the discourse radiates throughout the process, providing dialogue aimed at consensus. In this way, the objective is to respond to the problem of collegiality in Brazil and its legitimacy through the procedural model of judicial decision-making. Furthermore, the aim is to discuss the relationship between models of judicial deliberation and their contributions to strengthening collegiality in Brazil in the light of Habermasian theoretical postulates. Therefore, the research is proposed to investigate whether the decision-making model currently adopted in Brazil harmonizes with the court's perception of internal cooperation regarding collegiality, from a procedural decision perspective that privileges discursivity and deliberation between judges. To this end, analysis is adopted based on the deductive method, through qualitative research with a normative focus and bibliographical support in the works of Jürgen Habermas. From this, it is understood that Jürgen Habermas builds his theory of communicative action aimed at the emancipation of man from social structures dominated by strategic action. It is understood that the procedural model of judicial decision serves as a concrete application of communicative action in the jurisdiction, favoring intersubjectivity and discourse in the making of judicial decisions to the detriment of jurisdictional action aimed at the result of means and ends in the relations of political power and economic. Finally, in comparative law there are models of judicial deliberation that can serve as responses to the crisis of collegiality that exists in Brazil, with the per curiam and majority practice models being possible candidates to contribute to the collegiality that currently takes place through the aggregation of votes. It is concluded, therefore, that the seriatim model, as applied in Brazil, does not match the desired predicates of a model of judicial deliberation based on the procedural decision of Jürgen Habermas that privileges collegiality, understood as procedural cooperation, deliberation and the intersubjective discursivity itself inserted in the 2015 Code of Civil Procedure, which impedes a practice based on communicative rationality, making emancipation through discourse impossible.