Pragmatismo, decisão e efetividade

• Ano de defesa: 2022
• Autor(a) principal: Fortuna, Marcelo Forli
• Orientador(a): Araujo, Clarice von Oertzen de
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Processo; Teoria da decisão; Pragmatismo; Efetividade
• Palavras-chave em Inglês: Process; Decision theory; Pragmatism; Effectiveness
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://repositorio.pucsp.br/jspui/handle/handle/29643

The purpose of this thesis is to analyze the context and the rational decision-making process intertwined with the pragmatic method in a paradigm of effective constitutionalism. The starting point is the certainty that law is not limited to the level of concepts. It is realized in concrete and real experience, which implies the necessary understanding of the rational decision-making process, both in its context of discovery and its context of justification, which is fundamental to cultivating a culture of effectiveness. The constitutionalism of effectiveness is realized in the context of the cooperative model. Its institutes and fundamental norms intertwine in reciprocal influence with the pragmatic method, allowing the perception of its practical effects in the legal experience towards the realization of rights. All of this causes the role of the judiciary to shift from one supporting actor to a fundamental participant in the process of normative construction. The jurisdiction has an indispensable function in promoting the protection of rights by employing appropriate techniques. In this context, it is essential to investigate and reflect on the dynamic decision-making process of certification of the right and satisfaction of the certified protection. This dynamic process of deciding and enforcing protection is not carried out randomly, but within a real context, endowed with rules, characteristics, and purposes. This context of realization operates in a democratic and cooperative model that is legitimized by dialogic participation but without ignoring its finalists’ elements (effectiveness), stability (predictability), and commitment (responsibility). The intention is to analyze the practical and dynamic effects of this procedural model and its correlation with rational decision-making, based on a method that can interact in a real way with the subject, the problem, and the system. Thus, the method honors real rationality, which considers the practical effects of the subject’s stance and its relationship with the system from a problematic context. In this scenario, the method functions, in correlation with the context and rules of the cooperative model, as a true parameterization of the decision-making steps, highlighting and unveiling, without ignoring the justification step, the context of discovery, which, although it has a necessary perceptive moment, also develops in a reflective moment