A hermenêutica dos vieses cognitivos e sua influência na decisão judicial

Abstract

This thesis develops the analysis of cognitive biases at the philosophical hermeneutics and the existing impacto n the judicial decision. Deciding involves the limits and extention of the decision, as well as the elements which the decision must take place. Starting from the philosophical hermeneutics of Hans-Georg Gadamer, the attibution of meaning in the judicial decision and the caution for the distortion of pre-underestanding resulting in a true private interpretation. The interpretation is developed in three phases in which the normative phase is composed by the tradition and judicial regulation, the cognitive phase constituted by the apprehension of meaning by the interpreter, and the reproduction, in which the interpretetive product is applied. The gadameriana pre-underestanding representes the bases and concerns for the cognitive biases, that is, how preconceptions can come to condition decisions initially taken and/or considered correct. It is important to enphasize that one should not criticize preunderestandig in isolation. Each subject has knowledge, experiences, preferences, which is natural and impossible to disentagle. The criticism to be carried out concerns making automatic decisions that represent the judge’s preferences and interests. With the interdisciplinar development, automatisms began to be disciplined, with the ublications of Daniel Kahneman and Amos Tversky gaining prominence. The authors separate our performance into System 1, being fast, impulsive, emotional, and System 2, slow, reflective. The pre-understandings, existing in System 1 in automatic decisions, could be better studied and how they impact our decision making. With this, the importance o four pre-understandigs was developed, as they can confer biased decisions, as well as the study of the main cognitive biases and the possibilities of debiasing.