A gênese ilógica da sentença civil: intuição, sentimento e emoção no ato de julgar

Abstract

Much has been studied of the fundamental institutes of Procedural Law (e.g., jurisdiction, action, process, defense) and the classic concepts (e.g., jurisdictional protection, demand, judicial cognition). However, little is said about the core subject of the judicial process: the judge. The lack is greater when one considers their human nature as well as the inexorable influences of personality, the trinomial intuition-feeling-emotion and other extrajuridical factors (i.e., psychic, social, economic, religious, philosophical, ideological, political), that dwell in the unconscious underground of the being judge in the conformation of the act of judging in the strict sense.The present work, driven by interdisciplinarity, seeks to describe what actually happens at the moment of decision making. Reducing the judge's function to a pure syllogism, over impoverishing the virtualities and complexities of decision making, does not reflect the true human phenomenon germinated in the context of the discovery of the decision. The wealth of judgment does not harmonize with the ideology that perceives the judge as mere "mouth of the law." The representation of the sentence, in its origin, as a set of syllogisms, a product of pure logic or a logical-deductive formula is, thus, erroneous, since the decision cannot be visualized by exclusive formalistic lenses, isolating in vitro the judge from his inner world and the surrounding other.The present work sustains that, in its genesis, the sentence is illogical, since the judgment is neither rational, nor logical, even less articulated; rather, being of an inventive nature, it is permeable not only to the infiltrations of forces that erupt impetuously from the judge's unconsciousness, but also to the inevitable exercise of intuition in setting the working hypothesis.The judgment (to judge) is not yet to reason: the judgment comes before and the reasoning, later. First, given the peculiarities of each specific case, the judge intuits the decision to be made, mentally formulating his hypothesis of judgment and, afterwards, seeks to validate it, based on the legal institutes, on the evidence of the case file, on the law in force and judicial binding precedents.Already in the context of justification, the juridical motivation - which lodges the reasons for the judicial justification discourse - has the power to "rationalize" the decision a posteriori. It represents, therefore, the passport between the irrational/illogical genesis of the decision making and its dimension of rationality plus endo and extraprocedural controllability.It is not by chance that the juridical motivation of the decision is an essential element of the organization and functioning of the Constitutional and Democratic State of Law, in addition to proving an inestimable factor of argumentative legitimation of the jurisdictional function.