A dupla face da relação entre direito e economia na sociedade em rede: uma análise da jurisprudência do STF em matéria de agências reguladoras

Abstract

In the context of society nowadays, marked by a scenario of crises and globalization, it is fundamental to investigate the interdisciplinarity between law and economics, so that the first has preserved its autonomy, and is not merely at the mercy of interests of the second In this double movement, in which the Economy is directed to the Law and vice versa, there are issues that, due to their complexity, are jurisdictionalised with a view to a solution that puts an end to juseconomics controversies, which is not a simple task. One of these dilemmas is about the limits of the normative powers conferred on the regulatory agencies, that is, to what extent they have legislative technical competence, intervening in the economy, but without this entailing the violation of rights. It is in this panorama that the present dissertation is inserted, which research problem is: in what measure is possible to preserve the autonomy of the Law in its dialogue with the Economy, in the judicial plane, based on the STF decisions in the matter of regulatory agencies? To that end, the "method" of approach used is the phenomenology-hermeneutics of the Heideggerian-Gadamerian matrix (the word is in quotes, because the hermeneutical approach is much more a search path than a method in itself), together with the "methods" of functionalist, interdisciplinary and judicial decision-making procedures. The general objective is to investigate the relationship between Law and Economics in the Network Society, and the specific objectives are to (a) investigate the scenario of crises of modernity and the State in the midst of neoliberal globalization and Network society, and how this impacts the (problem of the autonomy of) Law and jurisdiction; (b) to search the relationship between law and economics, based on a double reciprocal interlacing movement, in view of the possible functionalization of the first by the second, in the midst of the Economic Analysis of Law (AED) and, on the other, Economic Law; (c) inquire about the “right answer” in Law, between truth and verisimilitude, and how this can be visualized in the legal-economic relationship; (d) approach STF decisions in which the dilemma between law and economics in the matter of regulatory agencies, involving the regulatory power of them, and which solutions are adopted, if they are sources of efficiency or protection of fundamental rights. In this sense, the justification for the work lies in the need to verify, judicially, how emblematic issues involving Law and Economy have been decided, in order to preserve the autonomy of the first in the face of the second and (2) in the imperative to inquire about the meaning of Law in the context of neoliberal globalization. In other words, it means the reflection on the question of its image before the "mirror" (paraphrasing the homonym literary tale of Machado de Assis and the television series called Black Mirror). Is the Law, therefore, a "black mirror" overshadowed by merely economic interests? In view of this discussion, it is concluded that the decisions of the STF, in matter of regulatory agencies, are, about everything, sources of protection of fundamental rights, with some notions of allocative efficiency and other economic concepts. In addition to this, the juseconomic controversies in this area are solved by the proportionality principle and the weighting, with a greater approximation of the Economic Administrative Law than of the Economic Analysis of Law. Moreover, it should be emphasized that this is an exemplary role of analyzed decisions, so that one can not answer the legal problem by stating that the Court preserves the autonomy of Law in all its judgments involving Law and Economy.