CONSEQUENCIALISMO JUDICIAL NA SUSPENSÃO DE SEGURANÇA NOS JULGAMENTOS DE DIREITO REGULATÓRIO: JUDICIAL CONSEQUENCIALISM IN THE SUSPENSION OF SECURITY IN REGULATORY LAW JUDGMENTS

• Autor(a) principal: Kellner, Alexander Leonard Martins
• Data de Publicação: 2019
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista da EMERJ (Online)
• Texto Completo: https://ojs.emerj.com.br/index.php/revistadaemerj/article/view/174
• topic: regulação; consequencialismo; neil maccormick; luis fernando schuartz; decisões de segunda ordem; regulation; consequentialism; neil maccormick; luis fernando schuartz; second order decisions

The relationship between the interpretation of legal norms and the realization and concretization, based on consequences, of constitutionally assured purposes seems increasingly frequent in the jurisprudence of the Brazilian courts. In this sense, judges, appeal court judges and ministers appear to introduce a logic and juridical rationality based on consequentialist arguments when rendering judicial decisions. The main point is that when the judicial authority bases a certain decision, by analyzing the consequences produced by it and possible alternatives, the decision maker should elaborate a reasoning based on scientific, extra-legal criteria of adequacy. The problem is that jurists do not have the epistemological ability to correctly handle those criteria. This paper analyzes the jurisprudence of the Superior Court of Justice (STJ) in the rendering of decisions in the context of requests for suspension of security related to the regulatory law. The scope of this work is to locate problems related to the positive dimension of consequentialist reasoning and, therefore, based on a second order justification, the work aims to propose the following second order strategy to the STJ ministers: always apply 4 (four) of the 5 (five) steps of the analysis of regulatory impact when judging requests for suspension of security under the regulatory law.