Art. 8º do CPC/2015 e a Lei n. 13.655/2018: eficiência econômica como regra de julgamento - a adoção da análise econômica do direito de Posner pelo legislador brasileiro

Abstract

The research aims to demonstrate that the Brazilian legislator in article 8º of the current Civil Procedure Code-CPC and in articles 20 and 23 of the Law of Introduction to the Norms of Brazilian Law-LINDB adopted the Law and Economics as a normative theory of the judicial decision, in the terms defended by the American jurist Richard Posner since the 1970s. As well as that the national doctrine in the scope of administrative law included the legislative change, however the manuals of civil procedure, and respectively the civil proceduralists who elaborate them, did not absorb this legislative change, and are ignoring the innovation in the field of hermeneutics of law brought by the mentioned articles. To achieve this end, the roots of classic american pragmatism are initially presented, as Posner currently calls himself a pragmatic philosopher of law. Afterwards, the birth of the Economic Analysis of Law as a normative theory of judicial decision according to Posner is explained, the moment in which there is a softening of his speech in his second phase of writings is pointed out. The legislative reform made in LINDB by law 13.655/2018 is then presented, as well as the expectation that the administrators had in the capacity of this alteration to change the ways in which the application of public law is based in Brazil already existing in the epigraph of the bill the declaration to deal with legal certainty and efficiency in the creation and application of public law. Furthermore, the wording of article 8 of CPC/2015 stands out, showing the similarity with article 5, 20 and 23 of LINDB, in the sense of imposing the procedural device on economic efficiency as a foundation for the application of the Brazilian legal system by the national judge. It is also identified, when these legal provisions are presented, that the legislator, when adopting legal consequentialism aimed at the purpose of efficiency in the application of public and private substantive law, applied economic efficiency as a rule of judgment, embracing Richard Posner´s Law and Economics, who has always advocated just that.