Judicial decision and its discontents: among drive, culture, ideology and law

Abstract

The aim of this article is to present an approximation between drives and Law. Based on the writings of Sigmund Freud, it is intended to demonstrate that the successive openings of legislative law to jurisprudential law enable the judge, consciously or unconsciously, make value judgements on positive law, legal provisions that promote, in the end, the very destruction of law, part of culture. The work is structured in successive in both legal and knowledge paradigms concerning the judicial decision, each of which is a parameter that expands or creates judicial discretion. Thus, firstly, it shall be made an approximation between the idea of civilization and its discontents in Freud and the underlying tension between individual drives and social rules and institutions, contextualizing this dynamic with the construction of the judicial decision and the law. Secondly, there is the question of truth and process, emphasizing the procedural function of providing a civilized decision and not exactly a superior truth, in addition to the limitations in the search for the truth. In a third part, two criteria for correcting the Law will be possible that seek a supposed objectification of the legal argument, considering that these corrective elements can be simulators of satisfaction of the impulse to attack the Law itself. In the fourth, the aggression drive is approached with ideology, which is operationalized by a judge of the judge’s value in relation to the Law and an impetus to transform it as it is understood as it should be. Finally, it is concluded that the judge must be aware of his own impulses and verify in which measures are used as an instrument of destruction of Law and culture.