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| Author(s): |
Marco Antônio Loschiavo Leme de Barros
Total Authors: 1
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| Document type: | Doctoral Thesis |
| Press: | São Paulo. |
| Institution: | Universidade de São Paulo (USP). Faculdade de Direito (FD/SBD) |
| Defense date: | 2018-03-27 |
| Examining board members: |
Celso Fernandes Campilongo;
Frederico Normanha Ribeiro de Almeida;
Samuel Rodrigues Barbosa;
Orlando Villas Bôas Filho;
Laurindo Dias Minhoto;
Roberto Dutra Torres Junior
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| Advisor: | Celso Fernandes Campilongo |
| Abstract | |
This thesis investigates, inspired by the systemic sociological perspective of Niklas Luhmann, the growing use of consequentialist reasoning in Brazilian law. Over the past three decades, the number of statues that have been pursuing concrete goals established in the 1988 Constitution has increased in the country, as well as the development of legal techniques for its achievement, among which the consequentialist reasoning between legal means and normative purposes. Paradoxically, there is also a weakness of the courts regarding the operation of this reasoning, which is based on technical-scientific and probabilistic methods, usually unrelated to legal systems. Considering the diagnosis of the operative deficit of the Brazilian Judiciary - in which statues and contracts are not able to avoid access in court of issues that were not sufficiently allocated in other programmatic instances -, I argue the hypothesis that the increase of the consequentialist legal reasoning in court may lead to a de-characterization of this type of reasoning by not observing the operative limits of the legal system. In the systemic perspective, consequentialism reflects a new dynamic of the courts and I present three different positions of observation (multilevel observation) about the consequentialist reasoning. First, the self-description of legal theory, which gradually produces a new semantic based on legal consequentialist reasoning. Second, the self-description of Brazilian society, which as an environment of Brazilian law is increasingly characterized as part of world society that is based on the communication of experts, the digital communication and processes of economization, that unfolds from metacodes such as inclusion/exclusion and risk/ danger. Third, the self-description of the courts, which can be observed simultaneously as center of the legal system and as peripheral organizations, increasingly active in the political and economic systems. In this last observation, I discuss empirical data on the decision-making behavior of the Brazilian Federal Supreme Court since the promulgation of the 1988 constitutional text, in cases regarding concentrated judicial review of economic rights. These three different positions of observation and empirical data allow us to examine the functioning of courts in society and how Brazilian law deals with issues produced by its surroundings, without losing its main functionality of legal decision-making. (AU) | |
| FAPESP's process: | 15/05525-0 - Courts, complexity and decision: the consequentialist reasoning in Brazilian law |
| Grantee: | Marco Antonio Loschiavo Leme de Barros |
| Support Opportunities: | Scholarships in Brazil - Doctorate |