Racionalidade e pesquisa comportamental no direito: avanço científico ou retórica?
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Data
2010-06
Orientador(res)
Porto, Antônio José Maristrello
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This is a paper on behavioral researches that question the reliability of the empirical assumptions of rationality of the social sciences. Decades of behavioral research have taught us is that the vast majority of cognitive biases identified and proven, they deviate from the assumptions of Rational Choice Theory are not in any way random, but instead are systematic and predictable. The idea unifying this paper is that the literature of behavioral research may allow us to model and predict behaviors relevant to law, with more realistic assumptions about human behavior. However, some researchers paint an enthusiastic picture about the potentials that such research has to inform legal analysis, and thus commit some oversight as to defend generalizations lacking support by empirical evidence, almost approaching the use of mere rhetoric. Given this scenario, we should seek to ensure that the incorporation of evidence from behavioral research in legal discourse be accompanied by a greater emphasis on empirical research in specific environments. This paper has three goals. The first is to analyze the different conceptions of rationality and discuss whether should maintain a privileged position in the social sciences. The second is to try to better understand the literature of behavioral research that questions the empirical validity of the axioms of Rational Choice Theory. The third is to identify problems in how behavioral research has been incorporated into the legal discourse.