THE TRIAL OF HABEAS CORPUS 126.292 / SP THE SUPREME FEDERAL COURT FROM THE PERSPECTIVE OF NEIL MACCORMICK THINKING ABOUT ARGUMENT OF JUDICIAL DECISION

Abstract

The article analyzes the trial of the action of habeas corpus 126,292 / SP by the Supreme Court, occurred on February 17, 2016, in which, from the examination of the concept and limits of the principle of the state of innocence presumption, it is now admitted the execution of the penalty after the confirmatory decision about the conviction pronounced by the second degree Court. The present study takes as reference the theory of argumentation by Neil MacCormick, especially considering that the judgment meets the essential elements to be contained in a judicial decision, which are consistency, coherence and universality. Initially, it is lectured about the concept of the principle of presumption of innocence and its legal nature. The second topic of the article seeks to summarize the content of the decision under study, to then analyze the arguments contained in the votes of ministers, to then review the terms of the judgment from the perspective of the proposed by Neil MacCormick. It is concluded that the decision attends to the universality required, but does not fulfill the requisites of coherence and consistency, especially considering it was taken by a majority vote and with the analysis of the arguments contained therein. The methodology used is literature, doctrinal, legislative and jurisprudential.