Legal Security and Economic Development


Source: Jornal do Commercio Brasil - RJ, 23/10/2008

The human being pursues peace in all fields of his experience. Legal peace is achieved with the “security of rights” in the clear vision of Karl Larenz, in one of his literary pearls found in the memorable work “Methodology of the Science of Law”. The Citizen Constitution of 1988 stipulates the “legal security”, a stone clause and the foundation of the Democratic Rule of Law as the nation's ideal. In the absence of security, peace and social stability, they suffer severe damage.


Security, in turn, is opposed to the new, to change, a phenomenon that in the legal world denotes significant perplexity.


The school of natural law, with a multidisciplinary and humanized essence, saw its fall to rationalist positivism, precisely because it promised the impossible; that is to say: the “immutable and eternal right”.


The human universe justifies anxiety about change, because the new means the loss of the past.


This contradiction is exacerbated when “legal security and economic development” are challenged.


Economists complain about the legitimate orgy and the fluctuations in jurisprudence, the criticism of which is echoed in the very number of amendments to a Constitution so recent from a historical-comparative perspective, thanks to the notorious variation of those judged.


The reality is that the changes are a consequence of a new liquid world to which Bauman referred, in which ideas are no longer based on time-based truth, but rather on the speed with which they arise and are based on experimentation.


The legal instrumental novel is abundant in satiating that expectation. Joining yesterday and today, the science of law boasts, in its safety prescription, the immutability of judgments after all the resources available against a certain decision have been exhausted, the non-retroactivity of laws, prescription and decadence, the technical novices of homogenization the jurisprudence for equal cases and the modulation of the effects of the declaration of unconstitutionality of the laws, making the law somewhat predictable to conjure up Locke's fear about the impact of legal changes on property and the disregard of the authority of laws and institutions.


The operators of the law, notably the enforcers in which all human aberrations and miseries are discharged, ask: what about the economy? What does it have to offer?


Despite the difficulties in understanding the “economes”, the factual and noticeable changes with the current crisis do not find a reasonable explanation.


Eric Hobsbaum called the twentieth century as brief and extreme, since it encompasses two great wars, watching the fall of the Berlin wall, the failure of communism and the emergence of a new navigation, which from the seas passed to the screen of computers connected to the internet.


The beginning of the XNUMXst century novel seems to be the aftermath of the past era; the haunted people are watching the destruction of what Karl Max called "the security of bourgeois selfishness" resurface.


The confrontation between economics and legal certainty does not reveal winners. Both segments are partially defeated, not least because they are currently inseparable: economic justice and normative economics, in John Rawls' clear view.


This volcanic crisis leads us to Fergusson's metaphorical perception: fire appears at the top of volcanoes, but rises in the center of the earth.


The root of this stormy moment that everyone is going through lies in a crisis of confidence.


The post-positivist legal world; and therefore current, it proclaims that information is a fundamental right of the citizen, on which trust is based and security derives from it.


The principle of “legitimate expectations” originating from German public law, protects the citizen against abrupt maneuvers by the State in any of its sovereign functions, giving them legal protection in the imbalance experienced in their moral or economic patrimony, observing the public interest and the principle reasonableness, balancing the balance representing the “fairness” value.


It is undeniable that information was lacking, legitimate confidence in the globalized world was broken. In any case, the “world has fallen”; uplift under the canopy of security is imperative. How to do it?


The best answer comes from the sensitivity of the men of letters, as was Fernando Sabino:


“You have to be sure that you are always starting; the certainty that it is necessary to continue and the certainty that we will be interrupted before finishing; what matters is to make interruption a new path, make falling a dance step, fear a stair, dream a bridge and looking for a date ”.



* Excerpt from the lecture given at the ETCO Institute on “Legal Security and Economic Development”