The principle “The judge knows the law” as an epistemological barrier to the correct decision

Abstract

This paper criticizes the idea rooted in the current Brazilian legal culture that the judge knows the law, and this idea is even treated as a principle of the process. The Brazilian proceduralists are rooted in this conviction. But, instead of assuming it in an uncritical way, it tries to show that this idea, instead of collaborating for the improvement of the judicial activity, contributes in the opposite way, supporting decisions that are often divorced from what determines the law and even distant from what the parties to the process intend and how much the evidence reveals. This idea is very much in tune with the positivist theses of Kelsen and Hart, dissociating from what Dworkin defends regarding the integrity of law. Yes, because, in the conclusions of the positivists, the judge is given a wide field to decide according to personal convictions, which generates the so-called solipsistic decisions. Thus, there is a proposal to review this principle or, at least, its mitigation, so that instead of treating the judge and his decisions as immaculate, demanding that judicial decisions be based on the law, be based on valid legal arguments, after a broad and sincere debate with the parties to the process. With this critical perspective in mind, there would be greater rigor in the decision-making act, contributing to an integral treatment of the law, which must be one, before and after the judicial decision. The article used the analytical-deductive method and was guided by bibliographical research.