CPC/2015, juristocracy, and the limits of judicial creativity: enforcement effectiveness, legal certainty, and hermeneutic self-restraint

Abstract

This article examines the tension between executive effectiveness and legal certainty under the 2015 Civil Procedure Code (CPC/2015). It posits that the CPC/2015 serves as a project for rationalization, coherence, and predictability, rather than mere procedural acceleration. Within the framework of "juristocracy," the study argues that judicial interpretation beyond literalism is often necessary due to the open texture of legal language and rapid social change.

However, this interpretive expansion finds its limit when it neutralizes objective criteria and express legislative choices. The analysis focuses on two core issues: the application of atypical enforcement measures (Art. 139, IV) and the controversy surrounding the garnishment of salaries below fifty minimum wages for non-alimony debts (Art. 833, IV). While enforcement effectiveness is a constitutionally protected right of the creditor to timely and useful judicial protection, it must not erode the debtor's fundamental rights or substitute legislative balancing. The study concludes that judicial legitimacy in a Democratic State of Law requires hermeneutic self-restraint, rigorous legal reasoning, and due regard for the practical consequences of judicial decisions.