O consequencialismo jurídico e a Lei de Introdução às Normas do Direito Brasileiro: diretrizes para a sua aplicação no direito público

Abstract

This research aims to investigate the use of consequentialist arguments in Brazilian public law, especially after Law n. 13,655/2018 came into effect which added arts. 20 and 21 on the Introduction Act to Brazilian Law Rules (LINDB). Using the deductive method, the research is exploratory and bibliographic. Based on studies presenting philosophical and legal concepts, those are compared with utilitarianism and pragmatism. Having established the theoretical framework, based on Neil MacCormick's theory of argumentation, the study moves on analyzing the provisions, pointing out the period in which the legislation was enacted, and the criticisms offered to it even before Law n. 13,655/2018 came into force. Given these criticisms, some topics are analized: first, art. 20 and 21 of the LINDB; then, the use of consequentialist arguments in the subsequent declaration of constitutionality that followed, due to the factual change and the modulation of the effects. The latter includes pointing out decisions of the Federal Supreme Court that used these arguments. Finally, when analyzing the risks and challenges involved, guidelines for applying consequentialist arguments in public law are proposed.