Fairness, distributive justice and the apportionment of the pre-salt royalties: a new analysis from Rawls' theory/Equidade, justica distributiva e a reparticao dos royalties do pre-sal: uma releitura de J. Rawls

This paper revisits John Rawls's theory of justice to address the judicial debate on the rules for distribution of royalties and special participations due to oil exploration in the Pre-Salt (Federal Law 12.734 / 2012), emphasizing the relevance of the Criterion of fairness for the analysis of this case that is under judgment in the Federal Supreme Court. From the examination of the arguments presented so far by the STF Ministers in Direct Action of Unconstitutionality 4,917, it is assessed how close or distant they are to the basic premises set by Rawls for a fair distribution in a cooperative scheme. Although Rawls's theory of justice was intended for a society of people, the hypothesis is that, in essence, it could also be valid for the analysis of a cooperative scheme such as federation, where state federative entities would be equivalent to people. Three possible distributive models are thought of: (i) one in which states of the federation that are potentially affected (to some extent) by the holding must receive exclusive and equal amounts of royalties from each other; (II) one in which states that are potentially most affected by exploitation should receive a larger share of royalties, but other states should also receive a portion, albeit a minor one, as they are all part of a federation; And (iii) one in which all States, regardless of whether or not they are potentially affected, shall receive equal shares of the Earnings from the pre-salt exploitation, since the federation's earnings (proceeds) shall enjoy all. Interested in knowing how much it is up to who, and how the notion of fairness can offer the most appropriate answer, this article, from the case study, uses a qualitative-quantitative method. It is concluded that the distributive model most compatible with the principles of justice advocated by Rawls, including the principle of difference, would be the one in which the states that are potentially more affected by the exploitation must receive a greater part of the royalties. Keywords: Royalties Pre-Salt; Justice as fairness; John Rawls; Brazilian Supreme Court. Este artigo revisita a teoria da justica de John Rawls para abordar o debate judicial sobre as regras de distribuicao dos royalties e participacoes especiais devidos pela exploracao de petroleo no Pre-Sal (pela Lei federal no. 12.734/2012), enfatizando a relevancia do criterio da equidade para a analise desse caso que se encontra sob julgamento no Supremo Tribunal Federal. A parti