As decisões estruturais na periférica realidade brasileira: um caminho possível?

Abstract

The traditional procedure model cannot afford adequate and effective mechanisms for the protection of collective rights because it develops almost exclusively according to the same rules as the classic polarized procedure, without noticing the nuances of the right that is actually being discussed. Therefore, the system is founded in a dangerous combination: collective rights – whose concepts don’t have a warrantable sociological foundation – are shrink to fit in a procedure archetipe built to individual litigation, regardless all the complexity inherent to that kind of rights. In this context, the structural injunctions, born in north american reality, raise as an alternative to solve complex requests faced by the Judiciary. However, the problem is to know if the brazilian legal sytem and society are capable of absord, in an effective way, the institute wrought in such different reality. Furthermore, can this institute be applied in such a different legal system without contribute to create degenerate, or at least bureaucratic dialogues between public institutions? That happens because brazilian corrupt sytem cannot be ignored, on the opposite: it must be investigate if, in this specific context, the institute would be able to give proper answers to the problem of efectiveness of collective rights. The analysis has five steps: rethinking the traditional procedure model starting from the assumption of its insuficiency to regulate complex collective rights; historical analysis of the emergence of structural decisions in the American reality as an alternative capable of combating racial segregation; genesis of a detailed concept of structural injunction based on the sociological foundation mentioned in the step one and the characterics of the American model; critical discussion about the possibility of effective application of the institute in a social context clearly distinct from the North American; analysis of decisions made in Brazil indicated as examples of structural decisions, comparing them with the concept established in the third stage of the approach and analyzing, as much as possible, the ability to contribute to the effective realization of rights. The study, based essentially on bibliographic research, draws on jurisprudential analysis especially in the second and fifth stages, in order to bridge the gap between doctrine and procedural practice and provide more concrete insights to help answer the fundamental question: structural injunctions are a possible way?