A aplicação da técnica da ponderação do art. 489, § 2o, do CPC, e o dever de fundamentação das decisões judiciais à luz das decisões do pleno do Tribunal de Justiça do Tocantins

Abstract

This article analyzes the problem of applying the weighting technique in the light of the decisions of the Plenary of the Tribunal de Justiça do Tocantins (Court of Justice of Tocantins) based on norms, in particular that of art. 489 of the CPC, which consolidate the duty to substantiate judicial decisions. Thus, the dynamics of interaction between rules and principles was examined, with emphasis on the postulates of proportionality and reasonableness. From this, it is understood that the lack of objective requirements in the weighting of norms is something that compromises the reasoning of judicial decisions and allows manifestations to occur in search of personal satisfaction. Hence, when valid norms collide, the solution must use instruments capable of providing internal and external control. Therefore, within the scope of this study, it was sought to find out whether or not the decisions that follow this path have these validity requirements, necessary to make them substantiated as required by legislation. Thus, the balance between norms cannot provide margins to subjectivism, the interpreter must demonstrate objectively and clearly the reasons that led him to choose the higher law.