The fine line between judicial arbitrariness and discretion: between legitimate choices and unacceptable abuses

Abstract

This study aims to analyze the meanings attributed to the terms “arbitrariness” and “discretion” in judicial decisions, as well as the fine line that separates them in a justice system operating under the principle of the judge’s free exercise of discretion (Art. 371 of the Brazilian Code of Civil Procedure). The starting point is the hypothesis that, although legal doctrine seeks to distinguish these concepts precisely, associating discretion with the legitimate exercise of reasoned decision-making freedom and arbitrariness with the abuse of state power, this distinction does not manifest itself uniformly or clearly in the decision-making practices of Brazilian courts. As this research is still in its early stages, ADI 6239 and its related cases (ADIs 6236, 6238, 6266, and 6302) were selected as a case study. These actions were filed by the Association of Brazilian Magistrates (AMB) and the Association of Federal Judges of Brazil (Ajufe), challenging various provisions of Law No. 13.869/2019, the New Law on Abuse of Authority. The core debate in ADI 6239 revolves around the concept of judicial arbitrariness, although a final ruling has not yet been issued. This text examines the rhetorical use of the concepts of arbitrariness and discretion and the fine line separating them between legitimate judicial choices and unacceptable abuses based on the assumption that both concepts are subject, in specific cases submitted to the Judiciary, to interpretations that are likely influenced by judges’ own particularized senses of justice, which are not always adequately made explicit through reasoned decisions or subject to a shared interpretative consensus among legal actors.