A legitimidade das decisões pela via argumentativo discursiva: análise do incidente de resolução de demandas repetitivas (IRDR) e do princípio democrático

Abstract

The present research seeks, from an interdisciplinary analysis, to discuss the legal institute of the Incident of Resolution of Repetitive Demands (IRDR), created in Brazilian Law by the Civil Procedure Code (CPC) in force, seeking to understand its constitutionality from the perspective of the principle democratic. The IRDR is characterized by being the judgment of a paradigm case that meets certain legal requirements and the effects of which will apply to identical cases or that are essentially merged into the same legal issue. The work intends to bring up the discussion about the legitimacy of the decisions rendered at IRDR, mainly with regard to the applicability of its decisions to cases not judged by the court, considering the lack of participation of the parties and the impossibility of them to influence the formation of the reason to decide. The effectiveness of the institute can be questioned from the perspective of legitimacy, insofar as the decision under the paradigm case will be imposed on other cases, lacking the effective wide circulation of arguments and the formation of convincing judicial activity. For this purpose, bibliographic research related to the Incident in question and related principles will be used, especially Legal Security and Democracy. The research will be qualitative, since the recognition of the legitimacy of decisions through discursive argumentative means does not allow to be obtained through empirical data, including the non-applicability of certain institutes brought by the present study. Thus, during the discussion, blemishes of the Brazilian legal system will be painted, which we seek to combat with the IRDR, to the same extent that criticism will be made of the Incident itself and its alignment with the constitutional principles in force. Nevertheless, the issues that will be debated about the IRDR, especially with regard to the effective participation of the parties in the processes affected by the paradigm decision, it is clear that the efficient application of certain instruments, as well as their compatibility with the dynamics of the Incident may allow that legitimacy to be achieved.