O dilema do processo civil atual: neutralidade valorativa ou dirigismo axiológico na aplicação da lei instrumental

Abstract

This work, conducted through the exploitation of their own concepts of procedural law and legal sociology, as well as the interactions between the forms of theoretical knowledge of those fields, aims to investigate the possibilities of the contemporary process as an instrument to achieve justice from the content and axiological character in the standards that apply or do because of the need for additional evaluative by law enforcers. Setting such opportunities in terms of a dilemma between the evaluative neutrality of the judges on the adequacy of laws and axiological dirigisme of judges in law enforcement procedure, shall not deconstruct the objective ideal of action instrumentalist procedure or redeem retrograde positions of reaffirmation of a process purely legalistic, but try to understand the phenomenon of civil procedure as a result of the balance between legitimacy and legality inherent to agents of its creation. The sociological conception of procedure, as referred to in the text to establish dialogue between neutrality or judicial interventionism, does not coincide fully with the shortening legal definitions that limits it to the mere ordering and concatenation of successive acts toward a final decision. For purposes of this monograph, the procedure must be understood as the set of all formal proceedings, including not only their forms or procedures, but also, more importantly, defining the powers, rights and obligations of procedural subjects, coordination the procedural activity, the ordering procedure and organization of the process with a view to the accomplishment of its primary objectives. The aim is also to analyze, from the instrumentalist perspective that opposes the positions of attachment to the excessive formalism, some contradictory situations set by recent decisions faced by lawyers and parties in the day-to-day of court. In practice, the limitations of process instrumentality are not only caused by the procedures itself, but also by the activity of who should be its principal vector, the judges