Estruturas de autoridade e finalidades do processo : a decisão criminal no modelo hierárquico de Mirjan Damaska sob a perspectiva da hermenêutica filosófica

Abstract

The present work is dedicated to investigate the criticism of part of the national legal doctrine that brazilian judges, in the specific case the criminal judges, remain stuck in the philosophy of conscience, and thus to ignore the ontological philosophy. Problematically, we ask the following questions: are brazilian criminal magistrates really anchored in the modern thinking, in the philosophy of conscience? If so, what explains this status quo and whta are the effects of this on the judge's mind? Is it an idiosyncratic or even anthropological attachment to a search for an ontological, real, substantial truth in the criminal judicial process? Or are the causes of this stagnation at the contextual and systemic level, involving the form and structure of authority of the State and the purposes of the criminal judicial process? To deal with these questions methodologically, we draw the cut line in the present research in two plans. The first, external, or systematic two sub-plans, namely: (a) in the first, we examine the structural models of authority / power as outlined by Professor Mirjan Damaska; and (b) still according to this same author, we examine the very purposes of the judicial process. In the second cut of the research we proceed to a philosophical analysis of the mechanisms and forces that act in the mind of the brazilian criminal judge, inserted that is in the hierarchical model, or, said in classic conception, in a derivation of European continental law, entrusted with the task of fact-finder and also of judge of the same criminal case.