Beyond the Kelsenian Frame: The Ghost of Subjectivity in Judicial Decisions

Abstract

This article investigates the influence of judicial subjectivity on legal decisions, establishing an interdisciplinary dialogue between legal theory and cognitive psychology. While legal positivism, particularly Hans Kelsen’s “Pure Theory of Law,” identifies the norm as a “frame” that offers multiple possibilities for application, it fails to detail the internal mechanisms that lead a judge to select one option over others. Utilizing the Empirical Zetetic Methodology, the study deconstructs the dogma of “prudent discretion” by demonstrating that judicial acts of will are not random but conditioned by predictable cognitive processes, such as heuristics and biases. Through an analysis of case law from the São Paulo Court of Justice (TJSP) regarding non-pecuniary damages (moral damages), the research reveals significant disparities in compensation for identical facts. These variations suggest that open-ended concepts like “reasonableness” and “proportionality” are often permeated by cognitive filters—such as anchoring, availability, and representativeness—that shape the magistrate’s understanding of fair compensation. The article concludes that improving the justice system requires moving beyond the reform of norms toward a multidisciplinary training approach that fosters self-critical awareness in judges regarding their own thought processes.