O consequencialismo e a LINDB: a cientificidade das previsões quanto às consequências práticas das decisões.

Gabardo, Emerson; Ademir de Souza, Pablo

The work has as a starting point the existence of hermeneutic problems that would be caused by the prevalence of the grounding model focused on principles in Brazilian Law. The answer commonly offered is a paradigm shift towards pragmatism. The objective is to discuss the problem of the application of art. 20 of the Law of Introduction to the Rules of Brazilian Law based on the consequentialist theories of the judicial decision, especially with regard to the scientificity of the forecast as to the likely consequences pointed out by the judges. The method used was descriptive, based on direct bibliographic analysis. From the debate on consequentialism as a theory of judicial decision, it was possible to draw an overview of some problems related to the applicability of art. 20 from LINDB. One of them refers to the question of the scientificity of the predictions used as the basis for decisions, or, in other words, the problem of the validity of the descriptive stage of consequentialism. The first problem concerns the temporal and financial issues that the commissioning of specific technical studies for each case can bring to the reality of the courts. The second problem deals with the ideal hypothetical scenario, in which all decisions are backed by technical studies and opinions carried out with the greatest possible methodological rigor. However, even in this scenario, the forecasts backed by studies, opinions and decisions would be limited to describing probabilistic judgments about reality -which may imply subjectification of the process and distortions of the result. The scientific revolution operated through quantitative methods changed the perception of the truth sought through science. The search for deterministic truths was left to the detriment of probabilistic truths. However, the absence of adequate probative ballast for the predictions can relegate the consequentialist argument to the intuitive sense of the operators who, by their very nature, do not have qualifications in other areas of knowledge. In the end, this whole situation may favor the impact of phenomena such as Lawfare, judicial populism and political moralism in the decision of administrators, controllers and judges -which goes in the opposite direction to the original idea of seeking a solution to the hermeneutical problems of the Brazilian law at the beginning of the 21st century.

LEGAL judgments; SCIENTIFIC Revolution; RULE of law; TWENTY-first century; QUANTITATIVE research; LOGICAL prediction

A&C - Administrative & Constitutional Law Review - Revista de Direito Administrativo e Constitucional, 2020, Vol 20, Issue 81, p97

1516-3210

Academic Journal

10.21056/aec.v20i81.1452