PRAGMATIST MODEL OF DECISION-MAKING IN LAW: FROM THE INSTRUMENTAL MENTALISM TO THE COMMUNICATIVE INTERSUBJECTIVITY

Abstract

This paper aimed to evaluate the method of making rational decision derived from the philosophy of Kant as a foundation paradigma of public decisions and, more specifically, of legal decisions. Based on the communicative action theory of Jürgen Habermas, the question is  if  the  transcendental  model  of  decision-making  meets  the  democratic  demands. Methodologically, the qualitative research was based on doctrinal sources about the theme, promoting a legal and critical analysis. Habermas' communicative bias raises the hypothesis that Kant's transcendental method, which influenced so much the theory of justice and Law, entails the adoption of an objective posture by the decision maker, something incompatible with the need for broad participation and the intersubjectivity prescribed by democracy . It was concluded that the public decision-making process must overcome the transcendental, decisionistic  and  instrumental  models,  adopting  pragmatic  model,  which  is  more intersubjective and communicative, therefore more consistente with the participatory bias of democracy.