Por que Juízes Aplicam Padrões Jurídicos Espúrios? Uma Abordagem Comportamental

Abstract

There may be legal rules that are simply bad or spurious. Much of it was created with the best of intentions, but unfortunately, unforeseen circumstances or social behavioral changes make its application unfair or excessively burdensome to the individuals affected. Interestingly, rules capable of producing bad or undesirable solutions from a moral point of view often prevail even in times when there are judges who choose to disregard them, providing good reasons not to apply them in favor of another decision. Why such legal standards still prevail as disputes solutions ruled by the law? I argue that the cause of this persistence is explained by two phenomena studied by the realm of the social psychology, namely, Aschs experiment of conformity and submission to the consensus of a majority and the pluralistic ignorance. If I am correct, these phenomena or behavioural biases are an obstacle that prevents the prevalence of more sensible moral solutions on some specific cases, because they reinforce a logic of formal application of the law.