A eficiência como fundamento jurídico da decisão judicial e o estado de coisas inconstitucional: uma abordagem crítica à luz do debate de Ronald Dworkin e Richard Posner

Abstract

This master’s thesis proposes a study on the role of efficiency within the Law. It aims to propose an investigation into efficiency as a legal standard to be followed by judges when making judicial decisions. The issue is relevant, as it seeks to describe and confront the problem of the crisis of efficiency of the jurisdictional provision, notably, when it comes to dealing with complex issues involving the realization of fundamental rights. The question of the use of efficiency as the basis of the judicial decision has been increasingly debated on the national scene. Although the Brazilian legal system is still strongly linked to legal positivism, there is a growing tendency for an interdisciplinary relationship between Law and Moral Philosophy, Economics, Politics and Sociology, to deal with complex judicial cases. Given this national situation, then, the question arises as to whether the efficiency of judicial decisions can be applied by investigating whether this traditional tool of economics has ethical and moral value and can therefore be considered a legal principle. The judge - and this is a concrete reality in Brazilian law - is increasingly called upon to make judicial control of public policies and, in this scenario, he has to position himself on the effectiveness of fundamental rights. It happens that the realization of these rights not only involves its fundamentality, but also the analysis of its cost, because we live - and our country, due to a strong political and economic crisis, is not far from it - in an environment of scarcity of resources. So the distribution of assets and resources also has to be evaluated by the judge, because at the moment of the judicial decision, he acts not only as controller of a public policy, but also as an occasional legislator and implementer of a substitutive public policy. In this context, he has to position himself on the distribution of assets and resources and the analysis of the efficiency of the decision, as has been pointed out, is important because the decision will generate reflexes not only for the parties to the process, but also for society.