How do they decide in law systems? An approach on systemic constructionism

Abstract

From a communications perspective something in common can be observed in human decisions, a simple clause, consisting of a subject and a verb: I decide. The investigation of such a sentence leads to two questions: who is the subject who decides? And how does this subject decide? These questions are necessary to work with a bigger one: how can a decision be modeled in a system of law? The research uses Márcio Pugliesi’s systemic constructionism to work with this problem. Systemic constructionism models the subject as a semantic-pragmatic atmosphere, formed by doxa, episteme and social representations. This atmosphere is capable of establishing communication with different atmospheres using non-empty intersections. The atmosphere contains an irremovable level of semantic pollution – unquestioned meanings, ideologies and traditions peculiar of individuals and groups. As for the decision-making process, systemic constructionism deals with a pragmatic and strategic perspective of conflict resolution in law, founded on game theory, in order to optimize acts of decision in conflict situations. The subject, seen as a semantic-pragmatic atmosphere, acts and corrects his action with the purpose of achieving certain results at the lowest cost in the system. In law practice, certain procedures limit the action of the subject, but to systemic constructionism a decision is never true or false, or even correct, only useful or useless within a situational context. The minimax criterion offers a guide to measure the utility of decisions, based on the exclusion of uselessness, and offers a path to the minimum of the maximum – often not the answer aimed at, but one that the institution can deliver. Through the application of this model, systemic constructionism offers new ways to understand how a decision is made in a system of law.

Keywords: subject, decision, system of law, systemic constructionism.