Tensions between procedural rules and legal culture: The principle of the judge's free and motivated certainty and article 489 of the cpc

Abstract

This work problematizes, from an empirical perspective, whether and how the duty of justification for judicial decisions, provided for especially in §1 of article 489 of the CPC (Code of Civil Procedure), is articulated with (or confronts) the culture of the judge's free and motivated certainty. Article 489 of the current Code of Civil Procedure (2015), with no correspondence with the previous one (1973), establishes objective criteria and guidelines for judges to base their decisions on. In turn, article 371 provides that “the judge will assess the evidence contained in the records, regardless of the person who presented it, and will indicate in the decision the reasons for forming their certainty.” These are deliberate and intentional legislative changes, whose main objective was democratizing the judicial process, improving the mechanisms for justifying decisions, and containing possible judicial arbitrariness. Despite this, it is clear, especially through jurisprudential analysis, that the principle of free certainty insistently continues to persist in judicial practices. In this line, the objective of this article is, in addition to describing the empirical resistance to the new procedural commands of articles 371 and 489 of the CPC, to also reflect on this permanence in the Brazilian context and think about the challenges of aligning legal prescriptions with already consolidated and, often, functional procedural practices.