O principio da reserva do possível e a ponderação: uma proposta de critérios para análise da confiabilidade epistêmica de premissas empíricas e normativas

Abstract

An increasing number of lawsuits have been proposed in an attempt to guarantee the enforcement of constitutionally recognized rights and, as a consequence, to prevent the inaction or deficient performance of the Public Administration. The filing of these actions, as a rule, aims to achieve compliance with the obligation to do, consisting of material benefits not spontaneously offered by the Public Power, and consequently, the recognition and correction of possible state omissions in the implementation of fundamental rights. The principle of reserving the possible constitutes, along with the principle of separation of powers, the main argument to justify the impossibility of meeting these benefits and other state obligations that involve the expenditure of public resources. However, the approach to the principle has occurred without the adoption of sufficient technical criteria for its correct application. This situation can result in both the granting of undue benefits, in the absence of adequate procedural evidence that leads to the uncertainty of the allegations and premises presented by the Government, as well as the denial of due and reasonable benefits, due to the common sense appeal that hangs over the presumption of scarcity of public resources for the provision of services that materialize fundamental rights. It also allows for the proliferation of contradictory decisions in similar situations, to the detriment of legal certainty and isonomy in the treatment of the courts. The research is divided into two parts. The first, an exploratory and deductive bibliographic research on the theoretical aspects of the principle of the reserve of the possible, passing through its conceptualization, its incorporation in the national legal system, its relationship with the fundamental rights and budgetary rules, until reaching the survey of parameters objectives for measuring the epistemic reliability of the empirical and normative premises, in line with the refined weight formula proposed by Robert Alexy, the theoretical framework used. The second part contains the empirical research carried out in order to quantify the occurrence of the parameters listed in the jurisprudence of the Federal Supreme Court and the Superior Court of Justice, in order to assess the degree of epistemic reliability in which the decisions of these courts have been handed down.