Aplicação da Lei na Perspectiva da Escolha Pública: Uma Crítica Utilitarista da Construção Política do Direito

To apply the law involves much more than simply establish decision-making or methodological criteria for a fair trial. It means, rather, immersing the intricate and complex relationships established within the democratic Proceduralism, seeking to establish and equate interests sometimes exclusively private, trying not to break the delicate balance of forces erected by the social contract. Indeed, the construction of law is also a result of the disputes waged by any majorities and certain interest groups that end up monopolizing the power to administer justice. The utilitarian perspective, in spite of their acknowledged deficiencies, shows that democracy does not always guarantee the legitimacy of the policy and neither the rational and efficient allocation of resources. From the material point of view, therefore, the failure of the rule and the ineffectiveness of the values underpinning it end up emptying the very validity of the law. At the same time, the Theory of Public Choice shows that the application of the law undergoes a different logic from that observed in the judiciary and that it has significant impact on the construction of the right that sometimes ends up serving tool for actions that do not result in the collective well-being. Therefore, it is necessary to create stable mechanisms in the reasoning and the application of the rule enable the maintenance of confidence, streamlining effects and the maintenance of the expectations deposited in representative government.