Saímos do nirvana? A operacionalização do argumento das capacidades institucionais no STF
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Data
2017
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Leal, Fernando
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The paper reviews the literature on institutional capacities, identifying an unique methodology in the argument proposed by Sunstein and Vermeule that demands the choice of decision strategies based on comparative and systemic institutional analysis. That is done through the assessment of empirical and contextual elements such as error and decision costs and the global consequences of each approach judges could adopt. Moreover, the argument involves structural, methodological and epistemic assumptions, without which the use of the expression “institutional capacities” would not be in accordance to the authors’ proposal. From this, we turn to the limitations to the operationalization of the argument, noting that the application of comparative and systemic institutional analysis can be excessively burdensome to flesh and blood judges, who are subject to various cognitive and informational limitations that can lead to difficulties in carrying out the comparative and empirically informed analysis the argument entails and in following decision approaches. It is thus possible that the utilization by real judges of an argument created to guide decisions in a way as to cope with uncertainties in the application of law has the opposite effect, increasing such uncertainties as it is operationalized in a rethoric and non-transparent way. Based on these findings, we conducted a research of the cases tried by the Brazilian Federal Supreme Court (STF) in which the expressions “institutional capacity” and “institutional capacities” appear. The study of the votes of the Ministers who resorted to the expressions revealed that there are very few of them where the reasons why certain institutions are better placed to answer particular legal problems are explained. However, even in those cases, there are no empirical descriptions of the performance of such institutions. Instead, there are mere enunciations of capacities in abstract. Furthermore, some of the uses of the argument were expressly criticized by the authors who proposed its utilization, in special regarding idealizations about the performance of institutions and the usage of the label “institutional capacities” to designate very different theories