O DISCURSO JURÍDICO E A RECONSTRUÇÃO DO DEVIDO PROCESSO LEGAL A PARTIR DO MODELO DE DELIBERAÇÃO PROCEDIMENTAL DE JÜRGEN HABERMAS E DA COOPERAÇÃO PROCESSUAL

Abstract

This article aims to reconstruct tje due process of law, considering Jürgen Habermas's theory of communicative action and the introduction of a procedural paradigm based on the 2015 Code of Civil Procedure. It employs the inductive and reconstructive methods, based on bibliographical analysis in order to develop an exploratory and normative research. It understands that the current procedural legislation meets the requirements demanded by Habermas for the production of correct and consistent decisions, with an argumentative and regulated procedure. It visualizes that it is possible to reconstruct the due process of law, understood as the pragmatic budget of legal argumentation, which is implemented, infraconstitutionally, by procedural cooperation, which leads to the identification of emancipatory potentials. It understands that the judicial decision must be a polyphonic construction, which allows to ensure the democracy of the formed precedent, guaranteed for the formation of the law. Still, it identifies that it is necessary to build an argumentation rule for collegiate judgments, with the replacement of the pure seriatim model by the deliberative per curiam. Finally, it proposes the accountability of the judicial decision by civil society and legal dogmatics as ways of controlling the figures of perversion of law.