O mito da racionalidade plena: um estudo sobre o pensamento intuitivo e os vieses cognitivos no processo de tomada de decisão judicial

Abstract

The last centuries have been fruitful in the development of normative theories of judicial decision. All of them presuppose, however, that the judicial decision is a product of a complete human rationality. This research seeks to demonstrate that, with the development of the behavioral sciences over the last decades, it has been proven that the existence of a complete and uninterrupted human rationality is a myth. The important role that intuitive thinking plays in human decision-making processes has been increasingly recognized. Thus, the hypothesis of some jurists and legal movements, which argued that judges first discover their decision by intuition and, in a second moment, they ground it on rational arguments, might be quite right, even if not entirely. Following this line, we will analyze several empirical studies carried out in different parts of the world on how biases and heuristics in human thought affect decision-making, including the one made by judges, as demonstrated by research focused specifically on judicial behavior. Finally, some strategies that can be used to reduce these biases will be analyzed, and it will be emphasized that a first step towards overcoming this problem might be raising the awareness of magistrates about its existence