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Courts, complexity and decision: the consequentialist reasoning in Brazilian Law

Grant number: 15/05525-0
Support type:Scholarships in Brazil - Doctorate
Effective date (Start): September 01, 2016
Effective date (End): January 31, 2018
Field of knowledge:Applied Social Sciences - Law
Principal Investigator:Celso Fernandes Campilongo
Grantee:Marco Antonio Loschiavo Leme de Barros
Home Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

This research aims to investigate through Niklas Luhmann's systemic sociological bias the increasing use of consequentialist reasoning in Brazilian law. Over the past two decades, the amount of progressive legislation - understood as laws to achieve concrete goals of Constitution of 1988 - increased in Brazil, and there was the development of technical capacity to comply with these transformations, such as the consequentialist reasoning in law that is able to analyze the relevance between legal means and regulatory purposes with the use of probabilistic or technical methods. Nevertheless, while we may observe the expansion of consequentialist reasoning, we also notes certain fragility of the courts with the operation of consequentialist reasoning. Considering the diagnosis of the deficit of the Brazilian judiciary - laws and contracts are not able to prevent judicial claims due to insufficient allocation in other legal programs - , this research works the hypothesis that the increase of consequentialist reasoning cause a distortion of this type of reasoning due to the non-observation of the operative limits of legal system. In this case, it prevails a confusion between consequentialist reasoning and unauthorized situations - not related to law. In the systemic perspective, consequentialism reflects a new dynamic of courts in modern society. The interest is to highlight the implications of the fact that courts can be seen both as a center of the legal system and as a peripheral organization of political and economic systems. Moreover, the aim of this examination is to understand the function of courts in society and how Brazilian legal system deals with issues generated by its surroundings without losing its core functionality of producing legal decisions.