Sobre o sentir e o decidir: o papel das emoções no âmbito do julgamento

Abstract

The present work starts from questions about the influence of emotions experienced by the judge, from the contact with the cases, in the context of the judgment and the judicial decision. The research developed in the first chapter from a literature review of authors who understand life as having a tragic dimension. Thus, it is argued from Silva (2016) that such perspective should be reflected at the moment of judgment. For this, experience is an essential virtue for good judges, but in order to acquire it one must know oneself, one's own unconscious feelings and conflicts. Emotions are for Nussbaum (1997) components of rationality and, therefore, inevitable at the moment of deliberation. Sympathy is a desirable emotion for judges as it provides an empathic and sensitive understanding of cases. It turns out that not all emotions are desirable in the judgment (SILVA, 2016) and, therefore, handling them is necessary. As the law does not offer solutions for the handling of affections, an analogy is used between the figures of the judge and the psychoanalyst, since it is believed that the emotions experienced by these professionals throughout their practices are due to the same phenomenon. , the countertransference. The second chapter presents a literature review of the concepts of transference and countertransference, as well as the exposition of personal analysis as a tool for managing the affections aroused by the countertransference phenomenon. It is argued here that personal analysis can be a beneficial practice for judges and judges. In the third and last chapter, from the reading of Zenon Banowski (2007, 2011) is analyzed a feeling experienced by the judge as a result of the task of judging, anguish. The causes of this emotion are discussed, as well as the problematic issues of trying to get rid of them from an eminently normative stance. Finally, we defend the advancement of the language of law from a loving perspective.