O lado oculto da decisão jurídica e o dever de fundamentação

Abstract

The key premise is that the contexts of choice and reasoning are reciprocally adjustable, without denying the existence of the gap between the legal decision and the indication of the factual and legal reasons. The legal basis requires investigation that sheds light on the internal phase of decision making. It is imperative to elucidate, with the support of the behavioral and communicational sciences, the conscious and unconscious factors that weigh in the legal choices and tend to influence them. The decision-making exercise requires the contemporary justification of choice, rather than retrofactual grounds, which are intended to confirm previous inclinations without overcoming biases. Here, evidence-based justification is advocated to account for the entire process of assumption of premises, aware that the rhetorical invocation of arguments of mere confirmation is unreasonable. In fact, a new understanding of the justification in a legal decision is necessary to avoid common mistakes that can arise from the decision-making. Evaluating impacts, considering all the direct and indirect costs and benefits of the decision-making, is crucial to carry out the duty of justification. Keywords: justification, legal decisions, internal phase, evaluating impacts, contexts of choice and reasoning.