Argumentos consequencialistas no direito brasileiro: usos e ab(usos)

Abstract

The purpose of this paper was to identify and critically analyze the use of consequentialist arguments in Brazilian law as a basis for judicial decisions. When identifying the uses, ways were proposed to avoid abuses, such as the empirical research and Toulmin's argumentative model, the latter enabling the understanding that certain structures of premises must follow in the reasoning process, rationally validating the consequentialist argument. For that, in the first chapter, the axiological and historical bases of consequentialism, its main aspects, ideas and criticisms were investigated. In the second chapter, there was an advance on its spread by law, legal consequentialism, analyzing its legitimacy through the ideas of the different currents that were inspired by its premises, such as legal pragmatism and the economic analysis of law. In the third chapter, the reasoning of consequentialism in Brazilian law was sought, having as its norm the Constitution, the laws in a strict sense, the non-legal normative acts, in addition to the jurisprudence applied on the subject, in the latter case with analysis of judges of the Supreme Court of the STJ. Still, in the same chapter, the main criticisms to the use of consequentialist arguments in the Law were pointed out in order to identify, ex ante, possible abuses in their use in court. In chapter four, comparing the criticisms of the previous chapter, proposals were made to avoid abuses in the use of consequentialist arguments in court, such as Toulmin's empirical research and argumentative layout, a logical model that endorses the use of consequentialist arguments in Brazilian law, provided that the minimum premises established there are fulfilled. It is concluded that, there is legitimacy and normative foundations for the use of consequentialist arguments in court, provided that jurists effectively and methodologically use empirical research when they engage in extra-legal issues and always have an axiological foundation referenced in the legal system when they enter on the theme.