JUSTICE OR LEGALITY? THE DECISION-MAKING DILEMMA IN THE FACE OF UNJUST RULES

Abstract

This essay aimed to discuss the judicial decision-making conduct when the applicable infra-constitutional norm is considered unjust, in order to contemplate an adequate answer to the following guiding question of the research: Could the jurist, specifically the magistrate, fail to apply an infra-constitutional norm considering it unjust? Initially, it was considered that under a strict positivist view, the judge would be limited to the interpretation and technical application of the law, without engaging in assessments of justice; however, by adopting a broader approach, the possibility arises of resisting the application of norms that violate fundamental rights. Resistance to unjust laws is supported by theories of natural law and substantial justice, which claim that laws must be aligned with moral and equity principles. Added to this is the challenge faced by legal positivism in the post-World War II period, which emerged from the horrors practiced under totalitarian regimes, and which gave rise to the "Radbruch formula", which summarizes this tension by suggesting that positive law should be followed, except when it is unbearably unjust. It follows that, in cases of extreme and socially recognized injustice, the judge can, and should, refrain from applying rules that violate human dignity, even if they are formally valid.