Argumentation theory and jurisprudence of value: the basis of the decision as opposition the idea judicial discretion

Abstract

Considering that the institute legal proceedings of the decision gain more relevance in the Democratic State, this work - from a order’s question of the STF - Police Inquiry no 2424-4 - aims to present one essay about a decidability co-participed from of the one criticism the “Theory of Balacing of Values”, mainly, its undemocratic character of law application, concerning constitutional procedural guaranty, because the Supreme Federal Court has seemed to be following this theory., its using for reasons your decisions. For that, it’s necessary to consider the distinction between the reasons (justification discourse) and application (application discourse) of the norms, enunciated by Klaus Günther and appropriated for Harbermas. Besides this, it is essential a comprehension The Principle of Contra- dictory as guaranty of influence and not surprise, rejecting, this way, the concept of the mentioned principle, only as science and participation. Considering like this, will make some considerations for to structure proceduralism for a decidability co- participed.