PRUDENCE AS A CRITERIA OF THE CONSTITUTIONALLY ADEQUATE JUDICIAL DECISION

Abstract

Based on the analysis of the historical evolution of the Constitution, there is, within the scope of jurisdictional expansion, an increase in the importance of the magistrate's decision-making activity. Thus, the possibility of correctly deciding on the facts is studied, in terms of Karl Raimund Popper's theory, permeating through prudence as a criterion of success. As a general objective, we have the study of prudence, seeking to develop premises and criteria for its practical applicability by the magistrate in order to establish a future theory of prudential legal decision, to reach the concrete fair, compatible with the decision-making activity in a Constitutional Democratic State of Law. As specific objectives, there are: a) research on the historical evolution of neoconstitutionalism, in order to analyze how this constitutional theory operates in the legal system and how judges decide in a constitutional democracy; b) analysis of the judicial decision before the world of facts according to Karl Popper's theory and the conjectures intrinsic to the magistrate's subjectivity until reaching the judicial decision; c) elaboration of the basic premises for a future theory of judicial decision based on prudence. The deductive method of research was used, through bibliographic survey and respective selection; reading and analysis of legal texts. It is concluded that the same constitutional law that expands the prerogatives and competence of the magistrate must impose on him responsibilities that involve the delimitation of the adequate judicial decision that needs to pass through a prudential self-restraint.