Precisamos falar sobre a crise: a jurisprudência da crise sob uma perspectiva pragmática.

Abstract

This essay aims to investigate the relevance of the economic context in the judicial review in times of crisis. The hypothesis is that, especially in these moments of serious resource scarcity, the constitutional courts should recognize the importance of considering not only the extra-economic repercussions, but also the economic impact of their decisions. Based on the observation that constitutional courts can not neglect the context of scarcity, three of the specific criticisms are faced in order to propose a more transparent and efficient strategy for handling with hard cases, specially the economically relevant ones. Following the pragmatist matrix, the work is divided into three parts: contextualism, antifundationalism and consequentialism. First, one contextualizes the question, analyzing the various ways in which the economic argument has influenced the judicial review in times of crisis here and elsewhere. This part is divided into four groups, according to the judicial sincerity and the decision-making strategy. In the second part, one faces the objections often opposed to the consideration of the economic argument by justices. The chapter presents three specific challenges of the jurisprudence of crisis, which represent some of the foundations that pragmatic adjudication must overcome. These are the operational criticism, which emphasizes the lack of technical expertise of the judiciary to deal with economic issues; the formalist criticism, based on the belief that only strictly legal arguments count; and the political criticism, according to which an exceptional context would correspond to a space beyond the Law or a black hole. Finally, the third part reveals the consequentialist character of the discussion itself, as a forward look on the subject. Then it is proposed a more efficient methodology of allocation of public resources by judicial decision, which uses cost-benefit analysis, reasonableness and consequentialist technique in the prognosis of economic and extra-economic results. Two parameters are proposed: (i) the economic impact of the alternatives, evaluated in a systemic way and calibrated on the basis of the intensity of the crisis; and (ii) the essentiality of the legal interest at stake, valued according to its concrete relevance in the construction of dignity. In this paper it is proposed to adopt a few Law and Economics instruments in the valuation of the economic argument, in order to add a more objective overview to the judicial review.