Justice and truth in the jurisdictional provision, according to Brazilian civil procedural law

Abstract

Concerned about the constitutional guarantee of a democratic and due process, art. 369 of the CPC/2015 ensures that the parties have the right to use all legal means, as well as morally legitimate, although not specified in this Code, to prove the truth of the facts which underlie the application or defense and effectively influence the judge’s conviction. The purpose of this study is to demonstrate that the legal process systematized according to principles and values recommended by the Constitution (due process) can not be reduced to a mere cold technique of conflict resolution.

One can not think of justice separated from truth, no matter absolute truth is unreachable by human science. What justice requires of those who assumed the burden of accomplishing it is the commitment to seek for the feasible truth, within the proper reasonable criteria of the legal method. Given the technical limitations of procedural instruction and given the guiding rules to built the judge’s conviction, the evaluation the evidence veracity is almost always a probability judgment and, more rarely, as a judgment of certainty (fact search through rules extracted from the exact sciences). Nonetheless, the fact that the certification of truth occur under the practical imposition that demands to prove a fact when it turns up in the instruction of the process as “strongly probable” does not water down the commitment of the due process to the truth. This is because the assessment of likelihood is not freely made by the judge, but through logical deduction.