CONSEQUENTIALIST STRUCTURAL PROCESS: AN INVESTIGATION ON THE COMPREHENSION OF SOCIAL FUNDAMENTAL RIGHTS BY THE JUDICIARY AND THE DECISION-MAKING CONSEQUENCIALISM

 

 

 

This dissertation has as its theme the realization of fundamental social rights by the Judiciary in the "bipolarized" legal action model. From the reality of the Brazilian political/social/legal scenario, in which the fundamental social rights enshrined in the Federal Constitution of 1988 impose duties of conducts to the State, it is verified that the growing deficit of realization of these rights by the Elected Powers has caused the protagonism of the Judiciary in its effectiveness. Judicial control of public policies aimed at implementing fundamental social rights requires a reflection on the high complexity involved and the consequences to the budget-financial system, given the recognition of scarce resources to meet demands. The Judicial Branch's procedural model for the implementation of fundamental social rights prioritizes individual litigation which, in spite of being possible and legitimate, results in dire consequences. The present work investigates the possibility of adopting the consequentialist structural process model in the demands against the Public Administration in which fundamental social rights are discussed, observing the specificities of constitutional, administrative and budgetary law as well as the characteristics of the material law related to equal access to public goods, in the search for systemic optimization of the realization of those rights. The first part of the paper analyzes the social constitutionalism and its implications in the Federal Constitution of 1988, developing a theoretical framework that legitimates the Judiciary's power to carry out the control of public policies. The second part seeks to outline the structural process as a possible instrument for the realization of fundamental social rights and the feasibility of its application in the Brazilian legal system. The purpose of the third and final part is to weigh the need for the magistrate, while deciding in the structural process model, to face the consequences of his choice with the help of jurimetrics, given the complexity of the realization of fundamental social rights by the Judiciary and the impact of that decision in society.