Beyond the Kelsenian Frame: The Ghost of Subjectivity in Judicial Decisions

I. Introduction: The Ideal of Neutrality

The separation of powers, as conceived by Montesquieu in The Spirit of Law, ¹ grants the judiciary the authority to punish crimes or resolve private disputes. The union of the judicial and legislative powers would lead to arbitrariness, while the same individual exercising both judicial and executive power would become an oppressor. It follows that the separation and independence of the three branches of a state are necessary for political freedom. This concept of separating the application of law was later strengthened by legal positivism. The French Revolution enshrined the separation of powers, with Article 16 of the 1791 French Constitution stating that “a society in which the separation of powers is not determined has no Constitution.” ² This state structure directly influenced modern constitutionalism. In Brazil, Article 2 of the Constitution establishes that “the Legislative, the Executive, and the Judiciary are the powers of the Union, independent and harmonious among themselves.” ³ Similarly, the first three articles of the United States Constitution extensively detail and define the form and powers of the executive, legislative, and judicial branches.

The influence of the Enlightenment echoed in the science of law, inspiring the creation of the positivist movement. In this field, scientific knowledge, based on analysis of experimentation and proof, was considered the only valid source of knowledge. As a way to distance itself from and mark the defeat of natural law and religious norms, legal positivism sought to study law imposed by an authority in isolation. Among various schools of thought, legal positivism in the strict sense considers the possibility of a complete separation between law and morality. H. L. A. Hart formulated this thesis by defining that “it is not a necessary truth that law reproduces or satisfies certain demands of morality, even if it frequently does so in fact.” ⁴

While some authors sought to separate law from morality, others aimed for the complete isolation of law so that it could be scientifically studied as an object. This is the case with Hans Kelsen’s “Pure Theory of Law.” ⁵

The central objective of this article is to investigate the influence of judicial subjectivity on legal decisions, establishing an interdisciplinary bridge between legal theory and cognitive psychology. This article, through the Empirical Zetetic Methodology developed by Professor Tércio Sampaio Ferraz Junior, seeks to identify the conflicting points that underpin the objectivity of judicial decisions within the Brazilian legal system.

The fundamental gap filled by this article lies at the intersection between structural legal theory and the psychological reality of the judge, a field that classical doctrine tends to treat in a compartmentalized manner. While Hans Kelsen’s positivism identifies the norm as a “frame” that offers multiple possibilities of application, it does not detail the internal mechanisms that lead the judge to choose one of these options over others. The present work advances precisely by investigating this void, demonstrating that the “act of will” mentioned by Kelsen is not random, but conditioned by predictable and systematic cognitive processes, such as heuristics and biases.

Unlike traditional approaches that analyze judicial subjectivity solely through the lens of political ideology, this study employs the zetetic methodology to deconstruct dogmas such as “prudent discretion” and “reasonableness.” By confronting theory with the empirical practice of the São Paulo Court of Justice (TJSP), the article reveals that the absence of objective criteria for the quantification of moral damages allows cognitive filters—such as anchoring and availability—to operate decisively. Thus, the text fills a gap by proving that the disparity in compensation for identical facts is not a procedural error, but an intrinsic consequence of human bounded rationality in the exercise of jurisdiction.

Finally, the originality of this approach lies in seeking not merely a critique of subjectivity, but its technical understanding as a “refined subjectivity.” By integrating Daniel Kahneman’s concepts of Systems 1 and 2 ⁶ into the analysis of judicial discretion, the article offers an analytical tool that other authors neglect: the perception that even decisions grounded in technical rigor may conceal value-based choices rooted in mental shortcuts. In this way, the work contributes to the state of the art by proposing that the improvement of justice depends not only on the reform of norms but on the multidisciplinary training and self-critical awareness of judges regarding their own thought processes.

II. Theoretical Framework: Kelsen’s “Frame” and the Logic of the Reasonable

Kelsen developed a systematic conception of normative validity that became central to twentieth-century legal philosophy. For him, law must be understood as an autonomous normative system, distinct from moral, political, or sociological judgments. In this context, the validity of legal norms is not confused with their social efficacy or their content of justice but rather derives from the position they occupy within the hierarchical structure of the legal system. According to Kelsen, each norm derives its validity from another superior norm, in a chain that structures the legal system as a normative pyramid. This construction culminates in the hypothetical fundamental norm (Grundnorm), which is not positive but presumed, functioning as a logical-transcendental foundation that gives validity to all norms in the system.

Thus, normative validity does not depend on an empirical criterion, but on a theoretical presupposition indispensable for the system’s coherence. The validity of a norm is therefore distinct from its efficacy: while efficacy refers to the factual observance of norms by society, validity is a normative quality, conferred by conformity with the hierarchically superior norm. Although efficacy is a condition for the system’s permanence, it is not a constitutive criterion of validity. Thus, if a valid and effective norm exists, it must be applied. But how would this normative application be carried out by magistrates within the Kelsenian thesis?

According to Hans Kelsen’s Pure Theory of Law, ⁷ the subsumption of fact to the norm is a complex act of interpretation and creation of law, which develops as the norm is applied by a legal body. At this point, it is important to differentiate between law and the science of law. Law as an object consists of norms imposed by legitimate authorities. The science of law, in turn, is the analysis of how norms should act. For this, Kelsen defines a legal norm as a command, permission, or attribution of power or competence, produced by a legal authority, which is valid or invalid. That is, it is not possible to attribute a judgment of truth or falsity to legal norms. In contrast, a legal proposition would be a description of the legal norm, formulated by legal science, in which a hypothetical judgment states that, under certain conditions, certain consequences must intervene. Legal propositions, unlike norms, can be true or false.

Kelsen explains that legal science describes the relationship between a premise (the fact) and a consequence (the sanction) through the principle of imputation, which is expressed by the copula “ought-to-be.” While the legal norm prescribes, that is, it imposes something on its recipient, the legal proposition as an “ought-to-be” proposes to describe what that norm would be. Therefore, not everything that is described as law would, in fact, be applied as such. In the moment of applying the norm to a specific case, Kelsen states that norms function as a framework that provides several possibilities for application. This indeterminacy can be intentional (such as the margin of discretion in the conduct of a public agent) or unintentional (because to the ambiguity of language).

Thus, when an interpretation is carried out by the body applying the law (a judge or administrative authority), it is not just a mere act of knowledge that reveals a single correct solution already contained in the law. Rather, it is a combination of a cognitive interpretation (which reveals the various possibilities within the framework) and an act of will (in which the body chooses one of these possibilities). This choice is a voluntary and creative function of law, as the body fills the framework of the general norm, producing an individual norm that did not exist before. Therefore, the judge is a creator of law, albeit in a way limited by the legal framework. That is, for each act of jurisdictional provision, Kelsen understands the creation of an individual norm applicable to that case. It is already possible to consider an openness to the strict application of law to external elements.

That is, at the moment of adapting the concrete fact to the norm, the judge would have to opt for the various “frameworks” pointed out by Kelsen. This implies a judgment of choice by the magistrate. However, it is impossible to say that such a judgment would be free from external influences. Even if the law is considered to be strictly the norms set by political authority, at the moment of applying and resolving conflicts, there is a strong connection with the subjectivism of the judge. That is, H. L. A. Hart ⁸ states that when indeterminacy arises, justice re-emerges with a subjective load, which creates an openness to skepticism.

However, despite the strong scientistic appeal of positivist theory, it was not sufficient to govern social interactions. The atrocities committed by the German government during World War II found support in the legislation of the time. After all, the political power of the moment institutionalized the torturous and persecutory practices against minorities.

The application of Hans Kelsen’s Pure Theory in the context of the totalitarian regimes of the twentieth century highlights the danger of a legal system that privileges form over substance. By seeking axiological neutrality and purifying the Law of moral influences, the Kelsenian model ends up reducing the validity of the norm to the mere fulfillment of the legislative procedure, allowing authoritarian regimes to use legality as a shield for barbarism. This scenario was forcefully confronted in the Nuremberg Trials, where the defense of Nazi officers was based on the positivist dogma that “the law is the law” (Gesetz ist Gesetz).

The conviction of the defendants was only possible through the overcoming of this formalism, consolidated by the Radbruch Formula, ⁹ which established that laws that are manifestly unjust and that deny human dignity lose their juridical nature, thus grounding the transition to post-positivism, in which ethics and fundamental rights serve as mandatory filters of validity for any legal system. From that moment on, legal positivism showed its weaknesses, and it became necessary to find alternatives.

While Kelsenian positivism sought to isolate Law within a technical glass dome—unwittingly allowing subjectivity to operate in the shadows of neutrality—modern constitutionalism requires that the judge’s subjectivity be confronted and constrained not only by norms, but by a critical understanding of their own cognitive processes.

The Spaniard Luis Recaséns-Siches ¹⁰ presented a new vision at the time. It would be necessary to move away from the deductive logic in law, in which the application of law was based on the degree of adequacy of facts to pre-established norms. In Siches’ Theory of Reasonable Logic, “Law is security; but security in what? Security in what is considered just and what society of an era is fundamentally concerned with guaranteeing because it considers it inescapable for its ends. What Law must provide is precisely the security of the Just (. . .) What Law can offer us is only a relative degree of security and certainty at a minimum indispensable for social life.” ¹¹

That is, the content of the norm began to be understood as a fundamental point for its application. It would be necessary to understand the social values of that period so that the normative validity could be made effective. At this point, a process began to redirect normative interpretation to the surroundings of the facts. It is not enough just to be a written norm; it is necessary that it minimally and securely reflects what society understands as just. With the advances in the science of law, extralegal sources began to be observed in their relation to judicial decisions.

Recaséns-Siches even states that a magistrate’s judgment would be more linked to intuition than to logic, because human beings are endowed with a creative spirit and feelings, elements that influence the moment of judging. ¹²

III. The Modern Warning: Autocratic Legalism in Poland

Recently, the crisis of the Rule of Law in Poland represents a paradigmatic case of democratic backsliding and “autocratization,” in which the law was instrumentalized to subordinate the Judiciary to the Executive. ¹³ This process, initiated under the government of the Law and Justice party (PiS) between 2015 and 2023, was based on the gradual dismantling of constitutional safeguards through methods that the literature refers to as “autocratic legalism.” The essence of this crisis lies in the breakdown of the tacit commitment between political and legal elites, upsetting the necessary tension between sovereignty (gubernaculum) and justice (jurisdictio). When this balance is disrupted, the Judiciary ceases to be an impartial regulator of conflicts and becomes an object of direct political dispute.

During the tenure of the PiS-led government, institutional manipulation was carried out through legislative reforms that profoundly altered the composition and independence of central bodies, such as the National Council of the Judiciary (KRS) and the Constitutional Tribunal. The latter was degraded to the role of a “government helper,” ensuring judicial decisions favorable to the Executive’s agenda. The creation of new chambers within the Supreme Court, such as the Disciplinary Chamber, enabled the use of punitive measures—dubbed the “muzzle law”—to intimidate independent judges and challenge the legality of decisions contrary to the government. This scenario resulted in the appointment of more than 2,000 “neo-judges,” whose legitimacy is widely contested, thereby undermining legal certainty in the country.

With the change of government in October 2023, the new coalition led by Donald Tusk took office with the objective of restoring the Rule of Law, operating under the concept of “militant democracy.” However, the restoration faces severe obstacles, such as the veto power of President Andrzej Duda and the remaining influence of PiS within constitutional bodies. To circumvent these obstacles, the current government has resorted to parliamentary resolutions and ministerial guidelines—measures that, although aimed at “healing” the system, are criticized by experts for lacking a solid constitutional basis.

IV. On the Understanding of the Decision-Making Process

Various fields of psychology study the formation of the decision-making process. This study can have a biological perspective, based on the analysis of brain structures; on behavioral analysis and how the individual interacts with external stimuli; or through cognitive psychology, where internal processes of memory, attention, and heuristics are observed. The human decision-making process, including the judicial one, is rarely purely rational.

Daniel Kahneman ¹⁴ proposed that our brain operates with two cognitive systems: “System 1,” which is fast, automatic, emotional, and unconscious, activated for immediate responses; and “System 2,” which is slow, deliberate, logical, and conscious, used for complex decisions. Antônio Damásio ¹⁵ demonstrated that emotions are essential for good decisions, acting as “somatic markers” that signal the future consequences of options, accelerating the decision-making process and anticipating risks and rewards. Patients with lesions in the ventromedial prefrontal cortex, who lost the ability to feel emotions, have difficulty making everyday decisions, even while maintaining their logical intelligence intact.

The process of thought formation and decision-making constitutes a complex phenomenon that, on an ideal level, should occur in a fully rational manner. However, practice shows that human choices are frequently conditioned by cognitive limitations and biases that compromise the objectivity of decisions. In the managerial field, various authors defend the importance of structuring the decision-making process as a way to increase the quality of choices. Keeney, ¹⁶ Clemen, ¹⁷ and Hammond et al. ¹⁸ argue that a systematized decision analysis helps in defining problems, evaluating alternatives, and selecting consistent solutions. Hammond et al. propose that the decision-making process be understood from eight interconnected elements: the clear definition of the problem, the identification of objectives, the analysis of possible alternatives, the evaluation of consequences, the weighting of conflicting objectives, the consideration of uncertainties, risk tolerance, and the interdependence between decisions. Clemen, in turn, describes six dynamic stages that range from the initial understanding of the situation and objectives to the implementation and adjustment of the chosen alternative, including the analysis of the sensitivity of decisions in different scenarios. ¹⁹

Despite these methodologies reinforcing the need for systematization, the human capacity to deal with complex problems is limited. Herbert Simon, ²⁰ in 1957, named this phenomenon “bounded rationality,” a concept according to which individuals build simplified representations of reality, restricting the scope of their analysis. This limitation manifests itself in the incomplete search for alternatives, the tendency to accept “good enough” options instead of ideal ones, the valuing of the most obvious or familiar choices, and the difficulty in dealing with extensive or uncertain information. Thus, decisions rarely approach full rationality and tend to reflect practical reasonableness more than theoretical optimization.

In addition to the inherent restrictions of human rationality, the decision-making process is strongly influenced by heuristics, that is, mental shortcuts that allow judgments to be simplified in contexts of uncertainty. ²¹ Cognitive biases are “systematic errors that occur as a simplification strategy in information processing and that are repeated predictably in particular circumstances.” ²² The evolutionary line of psychology, as exemplified by Haselton et al., ²³ affirms that cognitive biases would be an adaptation of the human brain to deal with certain ambiguous or complex problems with agility. This environment can be compared to the role of the judge. Biases are like shortcuts that act unconsciously. Thus, it is possible to characterize them as consistent and predictable.

At the same time that cognitive biases allow the maintenance of processing capacity in complex environments without overloading the conscious level of the brain, they also create persistent traps and systematic errors of perception and evaluation. ²⁴ Among the most studied biases, it is possible to highlight the representativeness bias, the anchoring bias, the availability bias, and the attribution bias.

The availability heuristic leads individuals to estimate the probability of events based on the ease of recall, which can distort the evaluation by privileging striking or recent experiences. The representativeness heuristic leads to judgment by similarity with mental models or stereotypes, often resulting in mistaken evaluations when more reliable data are not considered. The anchoring and adjustment heuristic demonstrates that the first information received acts as a reference point for the decision, so that subsequent adjustments are insufficient to remove the effects of the initial anchor. In addition to these, other cognitive tendencies also interfere with judgment in situations of risk and uncertainty.

Ambiguity aversion, for example, makes people prefer scenarios in which probabilities are known, even if they are not necessarily more advantageous. Similarly, regression to the mean can lead to the false interpretation that atypical results will be maintained when, in general, they tend to return to more stable patterns.

V. Legal Realism and Judicial Performance

W. Kip Viscusi ²⁵ conducted a comparative analysis of the performance of magistrates and jurors within the context of risk-based decision-making, revealing significant disparities in the management of cognitive biases. While jury awards and decisions are frequently permeated by systemic errors and a predisposition toward excessive punitive damages, the judiciary demonstrates superior resilience to phenomena such as hindsight bias. According to Viscusi, this divergence stems not only from a higher average educational level and extensive technical experience in accident observation but also from a greater judicial inclination to ground rulings in efficiency criteria and the risk-utility balancing test.

Consequently, the judicial decision-making process tends to align with the tenets of the Law and Economics school, manifesting a more robust analytical capacity to isolate subjective perceptions and apply legal norms technically, even when faced with ex-post outcomes that are already known at the time of adjudication. This analysis suggests that while judges exhibit greater consistency and predictability—rendering them less erratic than jurors—subjectivity remains inherent. It evolves from a “gross error” into a sophisticated form of subjectivity, often obscured by technical rigor and efficiency-based standards. ²⁶

Nonetheless, the adjudicator’s subjectivity frequently shifts toward the interpretation of open-textured legal concepts. Although judges may statistically perform “better,” they must still define the parameters of “reasonableness,” determine the evidentiary weight of the record, and remain influenced by their own political and social trajectories (variables that datasets such as the Martin-Quinn scores attempt to quantify). While Viscusi’s findings point toward a technical performance by magistrates that is superior to that of laypeople—notably because of decisional consistency and the mitigation of hindsight bias in liability judgments—this does not imply an absence of subjectivity, but rather its refinement.

Through the lens of Empirical Zetetics, it is observed that the judicial propensity to base decisions on efficiency and cost-risk assessments does not constitute an absence of bias, but rather an adherence to a specific ideological paradigm: Economic Analysis of Law. Thus, judicial rationality, by shifting the decision from the realm of moral indignation (typical of juries) to that of utilitarian calculus, may conceal normative value choices under a veneer of dogmatic rigor. For the present thesis, this underscores that even “technical” adjudication remains informed by extralegal premises, necessitating an investigation into the subjective layers that persist beneath the magistrate’s facade of scientific neutrality.

The understanding of contemporary judicial performance requires deconstructing the myth of the judge as a purely technical, “calculating machine” devoid of agency. Richard Posner ²⁷ argues that the legalistic model, guided by the mechanical application of antecedent rules, is insufficient to explain judicial behavior, particularly within the “open area” of the law. In these spaces, where legal sources—such as constitutional texts and precedents—are ambiguous or lacunary, discretionary power becomes unavoidable, compelling the magistrate to act as an occasional legislator. Thus, subjectivity is not a behavioral deviation but an intrinsic component of resolving complex litigation.

Furthermore, Posner posits that the genesis of this subjectivity lies at the intersection of political ideology and the personal attributes of the adjudicator, including race, gender, and professional background. According to Posner’s analysis, magistrates are not “political eunuchs”; conversely, their preferences and worldviews operate decisively when formal logic fails to encompass the entirety of the legal reasoning. This dynamic is elucidated by Bayesian decision theory, which suggests that judges possess often unconscious “priors” (preconceptions). These cognitive frameworks function as informational filters, influencing the perceived credibility of evidence and the weight assigned to various social consequences, thereby allowing magistrates acting in absolute good faith to reach divergent conclusions based on pre-existing ideological inclinations.

However, this subjectivity does not result in the exercise of absolute or arbitrary power. The magistrate operates as a “constrained pragmatist,” whose personal inclinations are mitigated by internal and institutional constraints. The desire to maintain professional reputation, the principles of collegiality, and adherence to “judicial protocol” impose limits on individual will. For Posner, the judge pursues what is defined as “good work,” the excellence of which is shaped by social norms and the expectations of the legal community, preventing subjectivity from devolving into mere raw and disordered political will.

VI. Practical Application: Specific Biases and Moral Damages

Considering that judicial decisions are made by human beings, absolute impartiality, in practice, does not occur. Judges, as individuals with their own subjective load, end up integrating their own cognitive biases into the analysis of a legal case. Although positivist theory advocates for the strict application of the legal text, it is not possible to consolidate this view in the courts. Kelsen’s own analysis points to the “ought-to-be” and distinguishes it from the “is,” that is, from what is actually done by the judge. What this author does not elaborate on is the moment of discretion when the judge must choose which of the hypotheses that the norm provides can be applied to the specific case. At this point, the influence of the judge’s subjectivity comes into play, and one of the explanations for how it would act can be made explicit by the theory of cognitive biases.

Thus, through the representativeness bias, where one judges how much an individual fits a certain stereotype, a judge may unconsciously associate an accused’s appearance or socioeconomic history with stereotypes of a “criminal” (e.g., “an individual prone to criminality”), leading to a more severe interpretation of the evidence or a higher probability of conviction, even without concrete evidence to justify such an association. Likewise, when faced with a case that superficially resembles a “type” of crime or situation that they already know (e.g., “a typical case of domestic violence” or “a standard contractual dispute”), the judge may quickly apply the conclusions or approaches from past cases that are most representative to them, without deeply analyzing the particularities and nuances of the new situation.

The anchoring tendency makes a person fixate on the first information they receive, even if it is irrelevant. Thus, a judge who takes over a process in progress can be anchored by initial decisions or reports (e.g., a police report or a prosecutor’s opinion) that contain a preliminary assessment of guilt or the facts. This anchor can make it difficult to impartially re-evaluate all subsequent evidence, tending to confirm the initial impression.

Furthermore, the experiences and worldviews of magistrates can influence their decisions, as suggested by the availability bias. Therefore, the first impression a judge has of a defendant or a witness, possibly based on nonverbal cues or characteristics that arouse emotions (e.g., nervousness, manner of dress, or a dramatic personal history), can create a bias that guides the valuation of the entire testimony or body of evidence, because these impressions are “available” and vivid in their mind.

The attribution bias (or fundamental attribution error, one of its forms) occurs when people tend to overestimate dispositional factors (internal characteristics of the person) and underestimate situational factors (external circumstances) when explaining the behavior of others. The impact of this bias falls on the analysis of the responsibility for behaviors. In this bias, a judge may attribute a defendant’s illicit conduct primarily to character flaws, such as bad nature or lack of morals, instead of considering external factors such as socioeconomic difficulties, lack of opportunities, or unfavorable environmental conditions. This can lead to a more severe sentence, based on a moral judgment of the individual, and not just of the illicit act.

At the same time, if a judge develops empathy for an accused (e.g., due to a difficult life story or demonstrated repentance), they may be more inclined to interpret ambiguous behavior as unintentional or less culpable, granting “moral discounts” and resulting in a lighter sentence, even if the evidence could suggest a clearer intention. ²⁸

As an example, we can cite judicial decisions regarding non-pecuniary damage (dano moral). Non-pecuniary damage consists of an injury to personality rights. According to Sergio Cavalieri Filho, in light of the 1988 Federal Constitution, human dignity became central and the foundation for highly personal rights. Thus, “the rights to honor, name, privacy, intimacy, and liberty are encompassed in the right to dignity, the true foundation and essence of every constitutional precept relating to the rights of the human person.” ²⁹ As a result, non-pecuniary damage would be a violation of the right to human dignity. By its very nature, it cannot be pecuniarily evaluated and is attributed to everyone, regardless of race, color, wealth, culture, creed, sex, age, or nationality.

Furthermore, compensation for non-pecuniary damage seeks to mitigate, in an indirect way, the effects of the moral offense, since restitution to the status quo ante is impossible. In this scenario, to understand the extent of the damage itself, it is necessary to use common sense and a weighing of the life realities involved in the specific case. Thus, the judgment must use the logic of the reasonable as a guide for the arbitration of compensation. Reasonableness is the characteristic of that which is moderate, proportional, and, at the same time, necessary. Again, according to Cavalieri Filho, the reparation must be “compatible with the reprehensibility of the illicit conduct, the intensity and duration of the suffering experienced by the victim” ³⁰ and will stem from the author’s prudent analysis of the facts involving a particular cause.

However, there are objections to the possibility of repairing non-pecuniary damage. Maria Helena Diniz ³¹ points out that there is a danger of the inevitability of interference from judicial discretion when assessing the compensatory amount of the loss when unlimited power is granted to evaluate non-pecuniary damages. Part of the doctrine, such as Arthur Oscar de Oliveira Deda, ³² understands that prudent, moderate, and well-founded discretion differs from arbitrariness. On the other hand, the concepts of prudence and moderation themselves cannot be defined objectively—and it is within this openness that the subjectivity of the judge is inserted.

The analysis of the case law of the TJSP regarding the definitive loss of baggage in air transport—a harm considered in re ipsa (presumed)—concretely illustrates the disparity in the assessment of compensation for identical factual situations. In a recent decision by the 17th Chamber of Private Law, ³³ the compensatory amount was increased from R$ 2,000.00 to R$ 10,000.00, on the grounds that the failure in the provision of the service and the prolonged deprivation of the passenger’s belongings justified such an amount. By contrast, the 13th Chamber of Private Law, ³⁴ when adjudicating a case of the same nature and gravity, set compensation at R$ 5,000.00, arguing that this amount was consistent with the principles of reasonableness and proportionality.

This significant variation for the same harmful event within a single court reinforces the thesis that the application of the norm is not a mere act of technical cognition, but an “act of will” in which the judge fills the Kelsenian frame with their own subjective load. Such divergences demonstrate that open-ended concepts such as “prudence” and “moderation” end up being permeated by different heuristics and worldviews, resulting in decisions that, although formally valid, expose the absence of an objective and universal criterion for quantifying human suffering. This “openness” at the moment of adapting the concrete fact to the norm allows judicial subjectivity to operate decisively, often influenced by cognitive filters that shape the understanding of what would constitute fair compensation.

The discrepancy between the rulings may reveal the operation of representativeness and availability biases. While one chamber may associate baggage loss with a stereotype of a serious violation of dignity (triggering an emotional response of System 1), another may resort to the availability of these concerning the “moral damages industry” to moderate the amount based on a utilitarian calculation of bounded rationality. As Daniel Kahneman’s theory points out, the choice among the possibilities offered by the norm is not purely logical, but a reflection of heuristics that simplify complex judgments, transforming the “logic of the reasonable” into an extension of the personal trajectories and ideological predispositions of each judge. ³⁵

It is concluded with the reflection that the recognition of the influence of emotions and biases on judicial decision-making is not intended to disqualify the performance of judges, but rather to promote critical reflection and improve the multidisciplinary training of magistrates. ³⁶

VII. Conclusion

The investigation conducted demonstrates that the ideal of axiological neutrality, a pillar of classical legal positivism, encounters an insurmountable limit in the human nature of the judge. As observed, Hans Kelsen’s theory identifies the norm as a frame of possibilities, but leaves a theoretical void by failing to detail the criteria that lead to the choice of one option over others. This study reveals that such an “act of will” is not a purely logical or random operation, but a process conditioned by bounded rationality and by the invisible operation of cognitive heuristics and biases.

The practical analysis of decisions of the TJSP on moral damages illustrates how open-ended concepts such as “prudence” and “reasonableness” serve as a refuge for subjectivity. The disparity in compensation for identical cases of baggage loss confirms that the judge, far from being a “calculating machine,” acts as a creator of individual norms influenced by mental filters such as anchoring and availability. Thus, legal certainty is mitigated by a “refined subjectivity,” in which technical rigor often masks choices based on intuitions and personal trajectories.

Finally, the recognition of these cognitive limitations should not be interpreted as a discredit to the judicial function, but as an essential step toward its improvement. Overcoming dogmatic formalism requires the Judiciary to adopt a posture of self-criticism and to invest in multidisciplinary training. Only by understanding the internal mechanisms that shape their decisions will judges be able to exercise “conscious discretion,” ³⁷ bringing Law closer to a justice that is, in fact, a reflection of a reasonable and transparent logic, rather than merely an imposition of will disguised as neutrality.