A hermenêutica na tomada de decisão judicial: valoração da prova de reconhecimento de pessoas à luz do neurodireito e da fenomenologia

Abstract

Legal scholars study the process of judicial decision-making to improve the justice system, give more rationality to the law and obtain results compatible with the value of justice. However, these analysis often fails to consider perspectives other than law, such as those derived from cognitive sciences and philosophy. The present dissertation intends to broaden this horizon, bringing law closer to cognitive sciences and hermeneutics. The expansion of the frontiers of legal knowledge provides a more complete and, therefore, more adequate view for understanding judicial decision-making. The first step is to analyze the judicial decision from the perspective of neurolaw, focusing on the mental shortcuts that can unconsciously influence the judge's thinking. Then, the phenomenological hermeneutics on judicial decision-making shows that the adoption of an attitude that puts common and traditional practices of interpretation in parentheses is important to obtain a fair result for each case. Analyzing the ideas of Husserl, Heidegger, Gadamer, and other scholars, and suggesting that they should be adopted by the judge-human-being, the bases are built for adopting a more authentic posture to deal with each case under analysis and to provide a result that is consistent with the perceptions of justice appropriate for the current time. The convergence of some aspects of neurolaw with the phenomenology of judicial decision-making indicates that both areas of study can contribute to the improvement of jurisdiction. Using the valuation of eyewitness recognition evidence as an illustrative model, the research analyzes real cases to demonstrate that not critically reflecting on common practices in the context of this evidence can lead to serious errors, such as the arrest of innocent people. Thus, it is expected that this work highlights the importance of making the boundaries of legal knowledge more flexible to reach a more complete understanding of the phenomenon of judicial decision-making. As a human being, the judge needs to know himself and the others involved in the processes he analyzes to make decisions that are more appropriate for his time. Adopting postures that inhibit the mere reproduction of traditions is essential to reduce the risks of injustice and judicial errors.