Decido assim porque a sociedade pensa assim: a influência da mídia nas decisões judiciais em tempos de sociedade em rede

Abstract

The present dissertation aims to understand the influence of the media on judicial decisions in times of network society. To make this possible, the work is divided into three main sections. It begins by investigating the relationship established between social appeal, mediatization of cases and discretionary decision-making in law, dealing with how the media appeal, fostered by popular concerns, corroborates the subjectivity-ridden judicial decision-making and the strenghtening of the paradigm of philosophy of consciousness in field of procedural jurisdiction. The second chapter verifies the importance of talking about and ontological-linguistic turn to jurisdiction contemporaneously, in the sphere of judicial decisions, dealing with the need for an invasion of language in philosophy in the process as a condition of possibility for the removal of philosophy of consciousness and its consequent subjectivity on judicial decisions. Finally, the third section studies the (im)possibility of having a procedural jurisdiction hostage to the uncontrollability of judicial decisions present in the discretion in the strong sense under the mantle of Ronald Dworkin’s theory, establishing bases with a contemporary constitutionalism, from the need to understand the judicial process constitutionally and hermeneutically. Allied to this, it verifies the thesis of the correct answer in this context, resorting to the duties of coherence and integrity to judicial answers given in the scenario of the network society and, more than that, of a hermeneutically adequate answer to the Constitution, as a fundamnetally enshrined right. Thus, the question is: how does the media, as an instrument for reproducing the social clamor, influences judicial decision-makings in times of a network society? So, what is the place occupied by the philosophy of language in this scenario? To solve the research problem raised, the phenomenological-hermeneutic approach is used, since the essay is anchored in language as a space for the happening of Being. As the basis theory, the work has the hermeneutic theory, specifically with regard to the hermeneutic critique of law, with the structural pillars fixed in the theories of hermeneutic philosophy, of Martin Heidegger, of philosophical hermeneutics, of Hans-Georg Gadamer and in the anti-relativism of Ronald Dworkin. At the end of the research, it is possible to conclude that the influence of the media on judicial decision-making in times of a network society is affirmed by the symbiotic relationship established between social appeal and media, as a powerful mechanism to pressure the Judiciary, mainly through communicational technologie. From the media appeal, the judicial process becomes spetacular and can activate subjectivities in the decision-making act, which leads to judicial decisions that are based on elements that do not legally and constitutionally serve a democratic State of law. Responses based on moral convictions, social appeals, past experiences and personal feelings can emerge from this complex phenomenon, bringing (or maintaining) to the terrain of contemporary jurisdiction the rancidity of the philosoplhy of conscience paradigm, in the form of discretionary decisions. The place occupied by the philosophy of language in this scenario, in turn, is in the very function of language, which, in procedural jurisdiction, consists of providing the demonstration that judicial responser are the result of demonstrative expositions, and not deductive reasoning. Answers must be hermeneutically constructed and, decisively, the subjectivity of judgements is no tone of the pillars of this construction. Language enables the pré-understanding and comprehension of the judge, in addition to being indispensable for the establishment of the correct relationship between subject and object. Furthermore, it is a condition of possibility for the subject to know the world and, also, for the world itself to exist.