Author(s) Maria Amélia Simões Mesquita Pereira
Advisor(s) Joana Aguiar e Silva
Synopsis This work derives from a set of reflections suggested by the framework of classes of “Teoria da Jurisdição e Comunicação da Justiça”, within the “Mestrado em Direito Judiciário”, in which, at one point, the debate on the crisis of judicial activity’s legitimacy arouse. Unsettling, from the start, we felt the urge to investigate the theme and to gather possible thoughts that could highlight the debate. With this intent, we set to investigate the very intellectual, emotional, cultural and moral process that a Judge goes through, in order to understand to what extent and in what way could these features influence the guidelines of legal sentences. The first chapter of this thesis, seeks to outline the origins of this subject, going through the typical features of Legal Positivism, being this overview as relevant as it is to the necessary articulation to be established between the positivist thinking and the outlook of today’s crisis in the judiciary law. To complete this reflection we proposed ourselves to analyze the deep transformation suffered by this line of thinking along the twentieth century, which, although a legatee of the nineteenth century, still calls into question the entire jus-positivist thinking, especially the modus operandi of judicial practice, for which it proposes a less simplistic and less pragmatic model, with the introduction of issues of subjective nature (Chapter I). The second chapter analyses the context in which our century receives this discussion and even how it deals with it. This chapter integrates several perspectives, including the philosophic, the linguistic and the humanistic perspective of the judicial decisions (Chapter II). The third moment of this work focuses on the essential dialogue between law and social sciences, being this confluence truly essential to the understanding of the problematic axis of the sources that actually inform the judiciary law. This is the space granted to interdisciplinarity, which takes place in the analysis of the dialogue between Law and Morality, Ethics, Justice, Legal Hermeneutics, determinism and voluntarism of the decision, features that always underlie the spirit of the Judge when he utters his sentence (Chapter III). Keeping the path with interdisciplinarity, a space is also reserved for communication between Law, Neuroscience and Psychology, giving way to some considerations on the level of neurological functioning and cognitive process present in the Judges’ making of decisions; attention will also be drawn to the analysis of the human psyche and its influence in the process of decision making (Chapter IV). Finally, a few words will be addressed to the current crisis of values and of Justice, seeking to indicate which prototype of Judge should be better to adopt in order to provide possible answers to that same crises (Chapter V).
See more here.