A influência da dinâmica de instituições no comportamento decisional do Supremo Tribunal Federal: a interdisciplinaridade como paradigma de análise respaldada pelo pragmatismo jurídico de Richard A. Posner

Abstract

The purpose of this dissertation is to investigate the influence of the institutional context in judicial behavior of the Supreme Court in their positions of greater or lesser judicial activism. The theoretical support derived directly from the legal pragmatism employed by Richard Posner. Based on empiricism, Posner argues for the unveiling of the legal “science” for an interdisciplinary approach, when its usefulness in understanding legal and political phenomena has been demonstrated. Out of these phenomena, our focus was on the institutional behavior of the Supreme Court and its interaction with the other powers of the Brazilian republic. As an example factor from this new interdisciplinary theoretical framework, we use the concept of “institutional capital” that we understand to have empirical valence, to affirm that when deciding questions of law, the Supreme Court also acts influenced by the institutional consequences of their decisions. Not only legal, social and rightful aspects are relevant in decision-making, but as well their impact on institutional relations. The aim is to show the relevance in the formation of a pragmatic analysis’ culture within the legal doctrine in Brazil. Especially as regards the investigation of behavioral patterns in the context of the dynamics of an institution of the stature of the Supreme Court which repeatedly affects a complex and heterogeneous society with deep social inequalities. Soon after, we analyze the trajectory of the separation of powers, in order to discuss its influence in these institutional relations. It follows then: that the separation of powers can be conceived within a static theoretical context, but does not capture the dynamics of the constant interactions between the powers and their institutions; that the interdisciplinary way of legal pragmatism is presented as the best expedient to describe the behavior of the Supreme Court, in a heterogeneous environment with multiple alternatives; that despite the institutional independence is established, until then, as an intrinsic social value to the concept of democratic rule of law that cannot be ruled out, but also it cannot be amplified, once considered its both uses: to safeguard democracy and to safeguard own political and natural interests of the institutions.