Searching for reasoning and meaning in insolvency case law: A critical analysis of Portuguese judicial practice

Abstract

This paper examines Portuguese insolvency and pre-insolvency judicial proceedings through the lens of legal consciousness, drawing on qualitative analysis of 338 first-instance court decisions from 2007-2020. Through systematic coding and critical discourse analysis, we identify a paradoxical phenomenon we term "borrowed authority" - judicial decisions that voice the law's authority while simultaneously lacking authentic judicial voicing. This pattern manifests through mechanized jurisprudence, epistemic limitations, and moral evaluations that collectively contribute to the institutional marginalization of insolvency law. Our findings reveal how courts' discursive practices both reflect and reinforce broader patterns of institutional disengagement and social meaning-making around debt. The study advances theoretical understanding of how legal consciousness operates in insolvency contexts while offering practical insights into how procedural inertia and epistemic vulnerabilities systematically undermine the achievement of insolvency law's stated goals of economic rehabilitation and debtor relief.