The Need for a Theory of Judicial Decision and Its Criteria: The Judge's Political Responsibility and Limits on Interventions by the Judiciary

This paper examines the need for a theory of judicial decision and for clear decision criteria, alongside the reserve of consistency, in order to measure the judge’s political responsibility and to limit the interventions of the Judiciary. Three hypotheses are discussed: a) the theoretical common sense that guides Brazilian jurists is formed by remnants of exegetical positivism and of Kelsen’s positivism, by Robert Alexy’s theory of argumentation, by the jurisprudence of values, and by North American judicial activism; b) this common sense is untenable, because these theories were received in Brazil in a mistaken way and produce harmful effects on judicial decisions in a Democratic Rule of Law; and c) there is a need for a theory of judicial decision and for defined criteria to measure the judge’s political responsibility, limit the interventions of the Judiciary, establish parameters for the use of precedents, and preserve the Democratic Rule of Law. After setting out this theoretical consensus and the criticisms of Lenio Luiz Streck—the indiscriminate use of principles, arbitrariness, and non-compliance with the law—the conclusion is that the need for such a theory has been demonstrated and that the prevailing common sense must be transformed to make room for it.

DIETRICH, Pablo. The Need for a Theory of Judicial Decision and Its Criteria: The Judge's Political Responsibility and Limits on Interventions by the Judiciary. Zenodo, tradução do autor, 2026. DOI: 10.5281/zenodo.23821022.