Hermenêutica jurídica e inteligência artificial no processo jurisdicional da sociedade em rede

Abstract

The hermeneutic-legal possibilities for the validity of judicial decision taken with artificial intelligence in the Brazilian Democratic Rule of Law, in a scenario of conformation of the networkerd life, which insert the judge, who suffers the influx of the advance of the legal informatic, are undertood by an hermeneuticphenomenological approach incompatible whit the adoption of a method. With the expansion of the cartesian rationalism philosophy, the hermeneutics represented a correct interpretation theory by all sciences, and from gramatical has changed in psychological, and of this for interpretative historicism; and the Law arised from the human reason, with logical-experimental methods. The judge does not interpret and his decision is valid if corresponds of the intent of legislators; it is the exegetic positivism. The modern philosophy of language highlighted this as a condition of posibility. Kelsen separated Law, necessarily introduced by the authority, from moral; the validity was confused with effectiveness. Hart distinguished himself from Kelsen by considering that the legal system foundation has a factual existence – soft positivism. On legal realism, factual positivism, the way for the Law is the jurisprudential experience and the validity depends on its empirical verification. The Liberal State was substituted by the Welfare State and social rights were enshrined in the Constitutions that were raised to the normative top. The judge then had an activist role that, in Brazil, implied solipsism and ineffectiveness of the intended social transformation. On post-Wars, were developed the artificial intelligence and the new information’s and communication’s technologies what resulted in social remodeling. New cases related to the characteristics of the network society was submitted to the courts. The stages of internet were implemented and respectively were created fields of legal informatics- documentary, management and decision making. The artificial intelligence has achieved the judiciary inevitably, included the Brazilian, (tools as RADAR, VICTOR, LIA), and is used for proof valuation, procedural time management, automated decision issuing or its prediction. The concrete possibility of replacement of the judge by algorithm, the Judge-Software, finds, nevertheless, philosophical limits in the hermeneutic-ontological turn made by Heidegger, followed by Gadamer: there is already hermeneutics when the developer rationalizes contexts of human life; the legal solution is always productive. The ascension of the Democratic State imposed the positivisms overcoming. Habermas and Alexy opted for a procedural rationality, without removing discretionariety; the validity of the decision is given in the subsumption with the procedural agreement. Dworkin is who overcame the positivisms effectively, developing the idea of integrity and coherence to reach the right answer, valid because it is ot discretionary and resides inside of the chain of the novel of law. Streck associate the Dworkin’s theory with the philosophical hermeneutics to find the adequate answer, in which tradition dialectically interacts with creativity and criticism, from a specific case, and validity refers to the foundation of the legal basis. The use of artificial intelligence to make decisions in substitution of the human judge is valid when we are hostage of the subject-object scheme, of priori decisions, of method; the exclusively technical unveiling does not exist beyond the prediction of the decision in the theories of Dworkin and Streck, in which comprehension is concretion.