Theory of legal argumentation in confront with the judicial populism

In the book "Os onze," Felipe Recondo and Luiz Weber portray the Supreme Federal Court's backstage in Brazil. According to the authors, the eleven guardians of the Constitution make use of public opinion as a basis for their decisions, distancing themselves from the substantial underlying reasons. This problem fits into what is referred to by the doctrine as "judicial populism." The article hypothesizes that, through the "metapositivist" use of legal argument theorists, the Brazilian Court really acts in a populist way. The work methodology is descriptive and logical-deductive. The investigation analyzes the bibliography on the subject, critically addressing the theory of legal argumentation. The article describes the legal thinking evolution that led to persuasive arguments and the techniques of practical reason in the solution of legal questions, in addition to the use of the theoretical reason postulates. It reports the defense made by Theodor Viehweg and Chaim Perelman of the use of topic and rhetoric in law, then presenting the theme developed by Robert Alexy regarding legal discourse as a specific modality of practical discourse. In the end, it analyzes the collaboration of Aulis Aarnio in the study of the relationship between language and law to interpret the legal system and obtain a rational answer for the specific case. It concludes that these theories can be used as a parameter for criticism of judicial populism, embodied in the "eleven" of the STF.