O consequencialismo judicial na modulação de efeitos da tese do século

Abstract

The present monograph aims to analyze whether in the motions for clarification of the Century’s Thesis, in the Ministers’ reasoning for the effects modulation, there are consequentialist arguments and whether the requirements of legal security and exceptional social interest are fulfilled. To this end, the conducted research resorted on the theoretical framework of analytical positivism, critical of neoconstitutionalism, and the deductive and comparative methodology was used for its elaboration. The research obtained the following results: judicial consequentialism in Brazilian Tax Law has a reduced sphere of application; judicial consequentialist activism, in hard cases, by the STF, needs to be in the wake of legal certainty, to avoid unlimited judicial discretion; there are consequentialist arguments in the ministers’ votes during the judgment of the declaration motions of the Century’s Thesis; in the effects modulation of the Century’s Thesis, the requirements of exceptional social interest and legal security are not met for the application of modulation based on the jurisprudential turn; the proposal examined whether economic analysis of law is a possible tool in the interpretation of consequences in hard cases.