Elements for a theory of decision: Tackling the romantic hermeneutics applied in Brazil as if it were an interpretative evolution

Abstract

Decision theory has weaknesses that make it necessary to rethink methods of application of law within the judiciary. The author, through the method of literature review and introducing a new concept he calls performatic mantra, analyzes some elements of the philosophers Heidegger and Gadamer that have been nurturing the formation of a new theory of decision as a result of the linguistic turn. Besides the authors indicated, the author points out that, in Brazil, Streck has developed a theory called New Criticism of Law (NCD) that takes into account the linguistic turn as an element of great importance. The linguistic turn should be seen as responsible for a new paradigm applicable in various areas of knowledge, including law. The author criticize the position of a large number of judges in Brazil who, in his opinion, do not act according to the contemporary hermeneutics in law, but, on the contrary, still apply the romantic hermeneutics previous to the linguistic turn. The author points out some elements inherent in the thesis of the philosophers mentioned with the goal of fostering the discussion about issue relevant to a contemporary hermeneutics with a view to the formation of a theory of decision more akin to the linguistic turn. The author believes that a review of the concepts from an academic standpoint to indicate the linguistic turn in law could contribute to a theory of decision applied to Brazil.

Keywords: contemporary hermeneutics, linguistic turn, theory of decision, philosophy, New Criticism of Law.