The Reconstitution Of Narratives By The Judge

Between Emotion And (Pratical) Reason

Abstract

The judiciary is not a charity house. But it can’t be a lottery house either. When dealing with an applied social science (which is not – and cannot be - cartesian) the human factor will inevitably make a difference in the equation because people perceive the same situation differently, according to their own filters. The law, doctrine and jurisprudence could offer limits to this cognitive process, but end up being used (manipulated) later, just to justify what the subject-judge already wanted to do, simply deciding according to his own conscience. The ideal of justice is so discredited that the most modern courses revolve around persuasion (rhetoric) in court precisely because “in every head, a different sentence”. That increase the adherents to the empire of the law. But as history has taught, extremes are dangerous. On the one hand, narcissistic judges, who simply do what they want, when they want. On the other hand, judges who do not print their
identity in the decision, using only the law, the process in its rawness, forgetting the human factor. The judge can understand what cannot be written: emotions. But he is also a human being, so it is important that he perceives his own to remain in the place of external third party in the concrete realization of law. The intention, therefore, is to reverse the procedure so that it is heeded to legislative changes and contemporary jurisprudence, which should be followed by hierarchy, rather than anchoring itself in “diary-sentences” or “parchment-sentences”.Therefore, practical rationality, by encouraging the judge to fit the law (previously studied) to the concrete case (analyzed later) inspires (self)control (emotionally) and allows adequate fundamentation. It is possible and urgent because people under jurisdiction deserves some legal certainty.