LEGITIMITY AND RATIONALITY IN LEGAL ACTIONS: AN ANALYSIS FROM LEGAL POST-POSITIVISM
DOI:
https://doi.org/10.25192/ISSN.1982-0496.RDFD.V.31.I.2800Abstract
This article aims to analyze the phenomenon of decisionism, understood as a certain abandonment of the norm to the detriment of the judge's interpretation. It is also to understand how it is possible to accept a healthy judicial activism to the harmony between powers and if there is a possibility of outlining criteria to ensure that this activism is applied appropriately and within defined parameters. This research examines the differences between the problematic of decisionism in classical positivism, twentieth-century neo-positivism, and contemporary conceptions of legal decision (post-positivisms), in order to reflect the possibilities of thinking about judicial activism with rationality and legitimacy. This research is linked to the research project Margins of Law, conduced by Professor Rafael Simioni, within the scope of the Graduate Program in Law of the Faculty of Law of the South of Minas, area of concentration Constitutionalism and Democracy. In this study, we compare the thinking of the Brazilian Judiciary, especially the Federal Supreme Court, in cases that show a more activist position, with the teachings of philosophers who studied themselves to the study of the phenomenon of judicial decision, in a search for criteria and methods that could outline programs of action to preserve harmony between the powers, contributing, in the end, to the evolution of legal thought.
KEYWORDS: activism; judicial decision; legal positivism; theories of decision and legal argumentation.
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Copyright (c) 2026 Gustavo Chaves Vilas Boas, Rafael Lazzarotto Simioni

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