O IRDR como política pública judiciária: a proteção ao princípio da igualdade a partir da adequada representação

Abstract

The incident of resolution of repetitive demands (IRDR) was created by the Legislative Branch as a judicial public policy, aiming to reduce the number of lawsuits in process, directly reaching the repetitive issues arising mainly from mass legal relations. Its foundations are the constitutional principles of celerity (efficiency), legal security (predictability) and equality (uniformity of decisions). Despite being a consequentialist instrument, the IRDR is an innovative Brazilian creation, inspired by several foreign institutes, that aims at the establishment of legal theses on controversial issues to guarantee the constitutional principle of material equality. The same jurisdictional provision for parties in identical factual-legal situations is a consequence of the application of material equality. The different procedural treatment given to all the subjects affected by the uniformity of the legal theme also stems from the same principle. Because it has the nature of a repetitive collective process, its rules need to be understood differently from those applicable to the traditional individual process. The re-signification of the principle of equality, therefore, was made based on Marcelo Neves’ theory of circularity between principles and rules, also absorbing the theory of systems of Niklas Luhman. The self-referential legal system, limited by the Federal Constitution, allows the principle (equality) to guide the norms (IRDR) and, at the same time, to receive its meaning. The juridical system, at the same time, heteroreferent, also allows the principle to be explained by external values (contingencies) of the surrounding world (public policies). This understanding requires the applicator of the norm to take some cautions already authorized in the system, especially with the publicization and with the choice of model cases, in order to provide adequate representation. Comparative Law is an important source of evolution in the act of processing IRDR in protection of material equality.