The role of argumentation in the brazilian Supreme Court

Abstract

In the Brazilian Supreme Court, unlike others Supreme Courts, only the relator has the obligation to justify his vote, and to the counting of votes it doesn't matter whether there is consensus among the judges or not. This non obligatory justification of the vote leads to the practice of "voting with the relator", what suggests a double understanding: it can mean that one agrees entirely with his decision as well as with his justification, but it can also mean that one agrees only with his decision and not with his justifications. The lack of demand for a consensus of the majority, on the other hand, leads to cases in which the decision of the court is made by a majority that was not only formed behind a common argument, but by divergent arguments, there being even occurrences of incompatible arguments. A genuine example of this type of occurrence is presented and discussed.

Keywords: Argumentative justification, Brazil, Supreme Court.