O julgador como sujeito do inconsciente: do Estado Natural de Parcialidade ao Estado Mínimo de Imparcialidade

Abstract

The theme of this work refers to the institute of impartiality.In light of the fact that, in the current constitutional procedural model, it is one of the bases of the Democratic State of Law, the complexity in the conceptualization of the institute was highlighted, given the plurality of non-coincident understandings, which leads to different interpretations and confusion with other phenomena such as independence and neutrality.Revisiting key-authors on the subject, it was found that the judge's subjectivity –being ajudge, arbitrator or juror–was a common point to the vast majority of existing concepts.In this direction, the present work intended to study the subjectivity of the judge in close contact with some phenomena of Psychoanalysis–such as the unconscious itself, the transference/counter transference relationship, superego, guilt, repression and other mechanisms of defense of the subject of the unconscious–given that the thesis reflects the search for a new appraisalof the impartiality institute.Based on this theory, every judge, here considered as a subject of the unconscious, would have, in addition to consciousness, a natural state of predisposition in the formulation of decision-making judgments, even if such predisposition does not seem to exist; and, for that reason, he would lean against or in favor of a jurisdictionalissue, independent of the normative system to which he was bound, revealing the existence of a Natural State of Partiality for the decision-making office. In other words, every judge would naturally be partial in the formulation of his judgments, at leastin the first moment after the conflict.In this trajectory and, based on the aforementioned psychoanalytical conceptions, it was verified the existence of another possible state to be reached: the Minimum State of Impartiality, which would be archived after a previous psychic process of the judge that would provide the overcoming of that Natural State of Partiality, even if provisionally, not only for the verification and debugging of the facts, but also for the interpretation and application of the appropriate rules, when the awareness of its existence is realized.Entering the sphere of the judge's subjectivity, the main psychoanalytic phenomena were outlined that are closely related to the Natural State of Partiality and the Minimum State of Impartiality, working on the hypotheses of not forming this Minimum State of Impartiality in practical situations, whatever : in cases of (i) prejudging, (ii) judicial activism, and (iii) unconscious omission in the exercise of the duty of responsibility by the arbitrator.At the end of the study, it was understood that there is a real duty arising from the impartiality institute, the exercise of which consists in the elaboration of a previous psychic process that must be carried out by every judge, in order to reach the Minimum State of Impartiality from his Natural State of Partiality