Implicações do discurso eficientista neoliberal no movimento de ampliação do acesso à justiça: a experiência dos Juizados Especiais Federais

Abstract

The Brazilian contemporary legal scenario is going through the dilemma of being efficient or effective. Efficiency forges a model of justice which is primarily concerned with the promptness of adjudication, while effectiveness forges a model of justice in which the main concern is the fulfillment of constitutional fundamental rights. This study aims to problematize the experience of Special Federal Courts (SFCs) considering this paradox. With the increasing number of conflicts, which are a consequence of the neoliberal economical- jurisdictional model, the legal system has adopted mechanisms that are able to absorb the growing demand for justice. In order to cope with this context, it has instituted alternative legal means such as the SFCs, besides other measures, aiming at the informalization of the legal system. The procedure of these SFCs is different from that in common justice mainly due to the characteristics of informality, celerity, simplicity, orality and consensus which the doctrine, uncritically, denominates as “principles of the Special Courts”. These characteristics are positively considered by a significant part of the doctrine since they profile a model of justice more identified with citizens. However, it should be noted that excessive formality can put the right to the due process under risk, making the procedure unconstitutional. Law, in general, as well as the Judiciary, in special, suffer (in)direct inflows of the neoliberal efficiency discourse due to the pararegulatory influence made either by the economic fostering institutions (World Bank) and the groups made up of important private companies. The government incorporates the recommendations proposed by these institutions and groups so that the laws and legal system do not become an obstacle to economic investments. An example of this is the Constitutional Amendment 45/2004, which follows the recommendations of the Technical Paper 319 S by the World Bank. The neoliberal legal model demands efficiency, productivity and predictability from the judiciary so that the economic actors can adopt a strategic behavior and that their interests do not suffer any obstacles by the judiciary bureaucracy. Therefore, the concern with efficiency overlaps the concern with the effectiveness of adjudication. These tendencies are significantly perceptible in the scope of SFCs. When judges interpret the “principles of Special Courts” through an efficiency perspective, the procedure is informalized to acclaim a model of justice based on the market and not on a model of proximity justice concerned with the promotion of constitutional rights. The understanding of the principles from philosophical hermeneutics by Hans-Georg Gadamer, of law as integrity by Ronald Dworkin and the theory of judicial decision by Lenio Streck impedes a pragmatic- efficiency procedure of the SFCs, as well as demystifies the idea that the criteria of courts can be considered principles. Through these approaches, the criteria of courts cannot be applied in a discretionary manner and should assume the condition of legal texts whose meanings are determined according to the case under analysis along with legal practices adopted by the community so that the set of legal practices is coherent. This is the way for the democratization of a qualified access to justice committed with obtaining answers that are constitutionally appropriate.