THE JUDICIAL DISCRETION IN CIVIL-CONSTITUTIONAL METHODOLOGY

Authors

  • Aline de Miranda Valverde Terra UERJ

DOI:

https://doi.org/10.5380/rfdufpr.v60i3.41141

Keywords:

Arbitrariness. Judicial discretion. Civil-constitutional methodology.

Abstract

This article aims to sharply and critically analyze the judicial discretion based on the civil-constitutional methodology. To this end, it will be demonstrated that the judicial discretion is inherent to any application and interpretation process of law, and more or less extensive, depending on the greater or lesser vagueness of the legislative technique applicable to the hypothesis to be examined. It will be seen that the judicial discretion, however, should not degenerate into arbitrariness, which results in causeless or teratological decisions. The legitimate exercise of discretion requires (i) the rational assessment of the facts by the magistrate and (ii) respect to the principle of legality. Regarding the control instrument, it should be emphasized the constitutional requirement to the grounds of the decision, important for both endo-processual and extra-processual control.

Author Biography

Aline de Miranda Valverde Terra, UERJ

Doutora (2015) e Mestre (2008) em Direito Civil pela UERJ. Bacharel (2000) em Direito pela UERJ. Professora agregada da Pontifícia Universidade Católica do Rio de Janeiro, de cursos de pós-graduação do CEPED/UERJ e da PUC/Rio. Coordenadora Editorial da Revista Brasileira de Direito Civil – RBDCivil.

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Published

2015-06-10

How to Cite

Terra, A. de M. V. (2015). THE JUDICIAL DISCRETION IN CIVIL-CONSTITUTIONAL METHODOLOGY. Revista Da Faculdade De Direito UFPR, 60(3), 367–382. https://doi.org/10.5380/rfdufpr.v60i3.41141

Issue

Vol. 60 No. 3 (2015)

Section

Artigos

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