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ECONOMIC ANALYSIS OF LAW: LEGAL ECONOMICS AND THE PLURALIST INTELLIGENCE OF

LAW IN PUBLIC ADMINISTRATION IN AFRICA (An approach to the Justice of Law, Public Legalism and...

Jacob Massuanganhe

0 18 DOI: 10.13140/RG.2.2.21979.08488

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ISPOTEC Higher Polytechnic and Technology Institute 1 author:

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Technical Report · September 2016

Machine Translated by Google NOVA UNIVERSITY OF LISBON LAW SCHOOL

JURIECONOMICS AND THE PLURALIST INTELLIGENCE OF LAW IN PUBLIC ADMINISTRATION IN AFRICA

Advisor:

Prof. Doctor Jorge Bacelar Gouveia Faculty of Law New University of Lisbon LISBON - PORTUGAL

(An approach to the Justice of Law,

SUMMARY

LISBON, SEPTEMBER 2016

Public Legalism and Legal Pluralism)

ECONOMIC ANALYSIS OF LAW:

i

Israel Jacob Massuanganhe

Post-Doctoral Research in Law

Student No. 004315

Machine Translated by Google Index

INTRODUCTION................................................. .................................................................. ........................................1

1.2

2.1.2

3.1.1.2 Normative Adaptability Analysis .............................................. ..................................................................27

1.4 Administration and the Public Service in Africa ............................................ .................................................................. ...7

Objectives: ............................................................. .................................................................. .................................................................. 5

1.5.2 Administrative Reform and the Public Service................................................. ..............................................13

2.2.1.1 Normative Jurimetry (Legal Acts) ..................................... .................................................................. 21

3.1.1

Fundamentals of Public Administration .............................................. .............................................7

Premises of Economic Analysis of Law ............................................................ ...........................................................17

2.2.2.3 Financial Analysis of the Legal Standard.................................................. .................................................................. .25

Law and Justice.................................................. .................................................................. ....................................3

1.3.2

2.1.2.3 Effectiveness of the Legal Standard ............................................ .................................................................. .........20

3.1.2.1 Normative Intelligence ................................................ .................................................... ....................28

3.1.3.1 Normative Diagnostic Analysis................................................. .................................................... .........30

1

1.2.2

2.1.2.1 Effectiveness of the Legal Standard................................................. .................................................... .................19

3.1.1.3 Normative Strategic Excellence................................................. .................................................... .....27

3 JURIECONOMICS AND PLURALIST LEGAL INTELLIGENCE................................................ ..........................26

1.2.1 General Purpose ................................................ .................................................................. ......................................5

Positivist Dogmatics and Normativist Reformism ..........................14

2.2.1.2 Positive Jurimetrics (Legal Facts)................................................... .................................................... ...22

1.4.1

2.2 Methodology of Economic Analysis of Law .............................................. ...............................................21

3.1.2.2 Intelligence of Prediction.................................................. .................................................................. .............29

1.4.2 Normativism and Public Legalism ................................................ .................................................................. .......8

2.1.1.1 Economic Approaches to Law .............................................. .................................................... ....17

1.3.1 Legal Hermeneutics................................................. .................................................................. .........................6

2.1

Normative Impact Analysis .............................................. .................................................... ...........24

ii

Pure Theory of Law.................................................. .................................................... ...........................4

Specific Objectives.................................................. .................................................... .........................5

1.5.3

2.2.1.3 Descriptive Jurimetry (Legal Statistics) ..................................... .............................................23

3.1.3.2 Normative Prognostic Analysis................................................. .................................................... .........31

1.1 Thematic Framework.................................................. .................................................................. ...........................two

1.4.3 The Crisis of Public Intervention............................................... .................................................................. ..................9

2.1.1.2 Contribution of the Economic Analysis of Law................................................... ......................................18

Fundamentals of Jurieconomics.................................................. .................................................... ..........26

1.1.1

1.5 The Administrative Reform ..................................................... .................................................................. ..........................12

Jurimetry - Legal Statistics ..................................................... .................................................................. ..........21

3.1.2.3 Anticipation Intelligence.................................................. .................................................................. ..............29

Interdisciplinarity of Law ................................................................... .................................................................. ...........6

2.1.1

2.2.2

2.2.2.1 Conceptual framework............................................. .................................................... ...............................24

Methodology ..................................................................... .................................................................. ..............................................6

2 ECONOMIC ANALYSIS OF LAW................................................ .................................................................. ...........16

2.2.1.4 Analytical Jurimetrics (Analytical Logic) ........................................ ..................................................................23

3.1.3.3 Analysis of Normative Implications................................................ .................................................... ...32

2.2.1

3.1.3 Analytical-Decision-Making Foundations .............................................. .................................................... ........30

1.4.4 The Sociological Defense of the Law ..................................................... .................................................................. .......11

Criteria for Economic Analysis of Law................................................................. .............................................19

Fundamentals .................................................................. .................................................................. ...........................................16

2.2.2.2 Cost-Effectiveness Analysis ............................................ .................................................................. ...... 25

3.1.1.1 Adequacy Analysis of normative acts.............................................. .................................27

1.1.2

1.5.1 Reformism and the New Public Management.................................................. ..............................................12

1.3

2.1.2.2 Efficiency of the Legal Standard.................................................. .................................................................. ..............19

3.1.2 Legal Intelligence .............................................. .................................................... ...........................28

Machine Translated by Google 3.1.4 The New Administrative Legal Order: Contemporary Defenses..................................................... .............32 3.1.4.1 Legal Norm and the social setting ............................ .................................................................. .............32 3.1.4.2 Administrative Delegalization.................................. .................................................................. .....................33 3.1.4.3 Administrative Legality ................................... .................................................................. ................................34 3.1.4.4 Legal Pluralism and Public Action........ .................................................... ....................................34

4 FINAL CONSIDERATIONS ............................................... .................................................... ..........................36

iii

Machine Translated by Google The refoundation of the administrative machine may imply the conception of model forms of administrative organization or even a rethinking of the functionality of the administrative machine itself. The administrative reforms initiated in the 1980s seem to have had no effect. In their magnitude they had an objective charge (modernism, results, etc.), putting aside subjective factors (humanization, moralization, respect for values, etc.). Analytical models are a vital instrument for the configuration and reconfiguration of facts resulting from normative measures. And as such, it is important to consider new methodological approaches so that Law can have a reference for screening and analyzing its postulates and decisions. Economic Analysis of Law in the context of American legal thought, its connections with realism and pragmatism, situated, together with Critical Legal Studies, as a reaction to formalism and conventionalism. This assumption may be associated with the melodic bases of measuring impact and implications leading to decorative norms.

However, the logic of legalism tends to lose its originality, as in the current situation it is imperative to demonstrate pluralist principles. As a result of this organization of administrative entities, it can be said that there is no Public Administration that acts in a uniform way but a plurality of organizational forms of Public Administration, all of which have legal-administrative relationships (Feijó, 2012).

Faced with global changes, society's dissatisfaction with the quality of public service is growing. The installed crisis brings with it harmful effects on the social and economic life of the population, and therefore, this begins to demand an increasingly active and responsive State. Current Public Administration is characterized by intense and profound changes, resulting from the international situation with implications for the social, political and economic structure, and raising critical challenges in the sphere of intellectual development in search of new approaches. Public Administration is governed by precepts of Law, where legality has become a primary foundation for the effectiveness of public action. However, currently there is a growing debate surrounding the efficiency of public intervention. From this perspective, Law is seen, in the first analysis, as a normative reality, being certain that not all norms regulating human activity are legal norms or rules of law. The law also has duties: to ensure justice, and as such, it must prioritize analytical methods that can evaluate and predict legal decisions. It is important to have a reference to the applicability of the standard as an evaluative indicator of its relevance. By virtue of its sovereignty, the State, for the first time in human history, takes for itself the monopoly of the production of law. Thus, the legal system becomes unified and centralized and the justice monopolized by the State becomes official justice.

With legalistic rigidity in public administration, a dogmatic mentality and a static-functional nature of

administration machines and agents can be observed, with negative impacts on the quality of public service at a time when global changes require new solutions to face the complexities of problems that affect society. It is in this field that jurieconomics emerges, based on the intersection of legal intelligence and economic analysis of law for the study of legal acts and facts. This is a framework based on measuring the relevance, efficiency and effectiveness in a short, medium and long term dimension of legal norms from their conception, formulation, analysis and implementation, monitoring economic increase. Legal intelligence proposes to be a support field for Zetetic conceptions of the legal field

1 FEIJÒ, Carlos (2012) The Normative Coexistence Between the State and Traditional Authorities in the Angolan Plural Legal Order – Doctoral Thesis. Edições Almedina, SA, Coimbra – Portugal.

Justice is the power to enforce someone's rights. The notion of guarantor validity is perhaps the most decisive point as a general theory of Law, as its formulation advocates the predominance of the material link between the legal order and fundamental rights. With this it is clear that justice is related to the most diverse forms of manifestation of law. The validity of the standard in books is not enough, but its full implementation and effective compliance is worth it. Law is not an end in itself and its purpose is to solve the problems of the society in which it operates. Pluralism is seen as a field to be explored. Despite legal practices being based on Legistics, questions are growing regarding the deficiency and effectiveness of legal norms in public administration.

Professor Feijó (2012)1 considers that the administrative function is performed by Public Administration, understood in the organic sense. However, Public Administration is not limited to the State, ie, it is not only made up of entities (bodies and services) belonging to the legal entity State. For Professor Teixeira (2014) 2 it constitutes a challenge in an interactive way, a syllabus in approaching the foundations of law, with the goal and, in view of the basic heterogeneity, the transversality of this approach. As a general principle, it is assumed that not all law is fair.

two TEIXEIRA, Carlos Manuel dos Santos (2014) Administrative Law. Extract from the article published in the book Direito de Angola. UAN Faculty of Law under the coordination of Prof. Elisa Rangel and Prof. Bacelar Gouveia. Luanda

1. INTRODUCTION

1

Machine Translated by Google Boaventura de S. Santos4's statement raises awareness of the importance of understanding legal pluralism in contemporary times, pointing, however, to a right that acts at the scale of the State, in order to recommend that, when discussing the term legal pluralism, one should necessarily speak of efficacy and validity. Considering that the law is not an end in itself and has the purpose of solving the problems of the society in which it operates. Law is just one of the systems in the normative universe, which goes beyond it, although there are those who say that others pre-exist it, such as religion, courtesy and morality. The legal norm, to achieve the plan

SANTOS, B. de Sousa (1996) A Discourse on Sciences. Harbor. Editions Confrontation. 8th Edition.

The twentieth century represented the crisis of the rationality of the legal system, built from positivism. Legal positivism is born out of the historical impulse for legislation, it is realized when the law becomes the exclusive source. Positivist dogmatics is based on a monist narrative, statehood and rationality to maintain its premise that Law is the law. In terms of legal pluralism, a situation is configured in which more than one legal order prevails in the same geopolitical space. Only information and basic concepts of the movement were provided. Despite the merit, the norms are sometimes seen as decorative laws. The duty to observe the law, expressed by the dogmatic conception of the existence of the normativity of regulatory texts produced by the State, implies the observance of a set of factors regarding their applicability and effectiveness. The law crisis has generated profound impacts on the law. The law, by interposing the legal imperative in administrative acts, can create dysfunctionality if all elements of guaranteeing the applicability of the law are not addressed – a crisis of legalism, and result in parallel mechanisms adopted outside the legal norm, which will lead to vicious practices in the administration.

Carlos Feijó (2016). Elements for State Building in Africa: Between modernity and tradition (Part II).

The excess of legalism is pointed out as one of the factors of inertia. And society's dissatisfaction with the quality of public service is growing. The administrative reforms initiated in the 1980s seem to have had no effect. In their magnitude they had an objective charge putting aside the subjective factors. The public management model seems out of step with the current context and economic and social conjuncture. Humanization and awareness tend to be critical factors. Hospital services register criticism regarding the loss of values. Africa's Ranking in “Doing Business” is constantly deteriorating, with indicators such as starting a business, Obtaining construction permits and Insolvency Resolution well below the world average. Inertia, bureaucracy, disrespect are hallmarks of the current administration in Africa. There are indications that the excess of the legalized creates space for illicit practices in the Administration. The levels of dissatisfaction are increasing both on the side of public servants and users of public services. The mobility of employees from the general regime to the special regime is increasing, especially at the level of public administration. This postulate supports the idea that Public Administration should not, solely, be seen as subject to public legalism.

Published in Jornal Vanguarda Nº 6 of June 21, 2016.

Carlos Feijó (2016)3 considers that it is symptomatic that models of legal construction tend to be inspired by supposed models of greater `cultural proximity', i.e., the models adopted – or in some way inherited by the former European colonial powers. Feijó argues that, “in addition to the African institutional level, the same has been seen a little at the level of formation, organization and functioning of States in Africa. From the Constitutions, through the sources of Law and the bureaucratic organization of African States, we witness a formal Westernization of the State model (ie, adoption of Western-inspired models, that is, Western European countries and North American countries of culture and traditions of the Judeo-Christian matrix. For Professor Carlos Feijó (2016), the preparation of African citizens to deal with new realities presupposes a methodological revolution based on the recognition of the need for in-depth knowledge of legal and socially relevant realities, which deserve protection of Law. To deny this knowledge is to deny the Law and amputate the jurist from access to instruments that are truly essential to carry out the full extent of his functions. Feijó, when citing the case of the relevance of the ideological openness of the law, seeks to show, in his words, “renewal of dogmatic formation of law schools.” Legal thought reveals itself as culturally historical entities. It is therefore not surprising that Roman, medieval, modern-enlightenment and current legal thoughts are not confused. These thoughts are different in their intentionality and methodical modality, in the nature of their rationality and in their specific type of judgment.

based on the improvement of legislative quality to meet the justice and fairness of legal norms within society by regulating cases of hypo or hypertension regulation. The analytical-deductive work seeks to contribute to an interdisciplinary and plural vision of the study of Public Administration, with a focus on public service.

1.1 Thematic Framework

two

3

4

Machine Translated by Google Queiroz, Marcelo Brito (2009) Legal-administrative regime. Rio de Janeiro.

Op. Cit Silva. Beclaute Oliveira (2006) Barzotto, Luis Fernando. (SD). Social Justice - Genesis, structure and application of a concept. Faculty of Law at UFRGS. Available at http://www.planalto.gov.br/ccivil_03/revista/Rev_48/artigos/ART_LUIS.htm. Accessed on May 11, 2015.

8

3

6 5 5

7 By justice we can also understand a moral principle by which respect for the law is observed. Justice also expresses the conformity of facts with law. Justice is the power to enforce the rights of someone or

everyone.

However, law is just one of the systems in the normative universe, which goes beyond it, although there are those who say that others pre-exist it, such as religion, courtesy and morality. The “fairness” criterion of a legal norm is assessed by measuring the objective and subjective values and premises that led the legislator to attribute the “legal” condition. Fair norm is the one that “should be” and not “should be” - it corresponds to the problem between what is real and what is ideal. Justice transcends the field of law and serves the State's purpose of satisfying the common good. It starts from the assumption that justice must be seen from different perspectives: normative, social and economic. It is consensual that the norm does not always produce desired effects, and as such, although the word Law is connoted with the word Justice, they cannot be considered synonymous. Law does not always produce Justice, although this is a doctrinal orientation. The word justice, its meaning is character, or something that is in accordance with what is right, with what is fair, appropriate or correct.

Law is the set of norms in force in a country, formed by a set of norms in force in a specific legal order and which establishes and governs relationships between individuals in that society. The study of Law is dedicated to the attempt to develop and understand general and abstract principles of conduct with a view to finding paths that lead such principles to their materialization, in the form of laws, doctrine and jurisprudence. It becomes increasingly imperative that the science of Law communicates with other sciences – Interdisciplinarity, as a consecrating premise of the pluralism that guides the contemporary legal world. Law is the sense of supposed and expected rationality and social conduct. Law strives for justice and justice, among others, for equity and the well-being of society. The central issue of this premise is that in the first instance the law must be seen in a progressive compendium; in the background, legal operators are invited to reflect on the quality of the decisions they make, taking as a reference the results, impact and effects arising therefrom; and third, legal decisions (norms) must be aligned with the natural norms of society.

of effectiveness, must also pass through the planes of existence and validity. At first, one can imagine that legal pluralism involves all these steps. In order for legal pluralism to be configured, the existence of two or more norms applicable to the same situation is necessary. This implies that the law does not always produce the desired effects, this resulting from the defects in its effectiveness or even the efficiency in the process of elaboration thereof.

According to Aristotle, the term justice7 denotes, at the same time, legality and equality. Thus, fair is both the one who fulfills the norm (justice in the strict sense) and the one who achieves equality (justice in the universal sense). State activity now unfolds in two ways: (i) attracting employees to a good level of performance with profitable and safe proposals, and (ii) ensuring public activity in an intense and constant manner, with the purpose of preserving the undeniable interest public. The thought of this great German jurist, Otto Mayer cited by Queiroz (2009)8, showed, since the end of the last century, that the administrative function can be focused on two aspects. The first relative to the subject of the function (objective aspect). And the second, related to the legal effects that this function provides. Queiroz (2009) argues that the administrative legal regime is a set of principle-norms (distinct from general principles of law, as will be seen below), specific to Administrative Law, guaranteeing its scientific autonomy. There is an excessive tendency for law to dominate over other sciences - supremacy (exclusive character),

Thomas Aquinas5, takes Aristotle's theory of justice and develops it into three types: legal, distributive and commutative justice. Under the impact of the egalitarian tendency that characterizes modernity, the Thomists of the 19th century, based on legal justice, developed the concept of social justice, which is found in the "Christian social ethics" of the 20th century. To designate Aristotelian general justice, Thomas frequently uses the term legal justice, since the acts owed to the community so that it can achieve its good, the common good, are, in most cases, set out in the norm. To designate Aristotelian general justice, Thomas frequently uses the term legal justice, since the acts owed to the community so that it can achieve its good, the common good, are, in most cases, set out in the norm. In this way, while the object of particular justice is the good of the individual, the object of legal justice is the common good: "Legal justice (...) aims at the common good as its own object", with the common good not the good of the whole, but the good of all. The duties of legal justice do not ultimately refer to the social "whole", but to all members of society6.

1.1.1 Law and Justice

Machine Translated by Google BOBBIO, Norberto. Legal Norm Theory. 3rd ed. magazine. So Paulo: Edipro, 2005.

1.1.2 Pure Theory of Law

According to the philosopher, our life is full of these signposts, many of which are made up of rules of law. What makes societies stable, with their institutions and orders, what Norberto Bobbio called “civilization”, the rules of man's conduct in society.

Kelsen9, the object of legal science consists of legal norms, and the task of the jurist (legal scientist) is to describe and systematize this object through propositions. According to Kelsen, legal knowledge, to be scientific, must be neutral. For Kelsen, the object of legal science consists of legal norms, and the task of the jurist (legal scientist) is to describe and systematize this object through propositions. Kelsen argues that legal knowledge, to be scientific, must be neutral10.

When new norms are produced, formal and material limits must be obeyed: (i) - formal: relate to the procedures to be followed for normative production; (ii) materials: content that can be regulated by a certain authority. It is clear that the punitive nature of the norm is effective in meeting the assumptions based on its validity and validity (the objective side), in

Kelsen's Pure Theory of Law intended to elevate law to the height of a genuine science, bringing its results as close as possible to the ideals of all science: objectivity and accuracy. Kelsen conceived law with the eyes of a jurist. For him, law was just a norm, without seeking elements from other sciences. In this sense, through his theory he tried to bring to Law the purity necessary for any science. He sought to separate Legal Science from any influence coming from Psychology, Sociology, Economics. In this sense, Kelsen saw legal science as supreme, however he suffered serious difficulties in explaining the basis of the validity of the law, thus giving a logical organicity to the system. To solve this problem Kelsen developed the fundamental norm theory. The Fundamental Norm Theory is based on the idea that Law is formed by hierarchically subordinated norms and there is a single authority that directly or indirectly assigns

KELSEN, Hans (1976) Pure theory of law. Coimbra. Beloved Armenian.

indirectly legal character to the whole set of norms. The legal system, therefore, is unitary, organic, closed, complete and self-sufficient, lacking nothing for its improvement, as lower norms seek their validity in higher norms.

In this sense, the legal system regulates normative production itself. Respect for hierarchy guarantees the unity of the legal system (the lowest norm can be linked to the highest, in a chain of successive commands). Legal System - composed of several norms made by different sources of normative power, with hierarchical relationships between them. We then have:-

Assis, Olney Queiroz (2011). Legal anthropology manual— São Paulo : Saraiva, 2011.

rules of conduct; - structure standards: rules to be followed to create new standards. The different sources of normative power are in a hierarchical relationship – the inferior is limited by the superior; hence the idea of a staggered construction of the Legal System: The inferior norm “executes” the commands of its superior (power), at the same time that it “produces” the inferior norm (power), so that between the most inferior and the most superior of all, a continuous line of commands can be drawn....(this is what guarantees unity).

which somewhat limits the inclusivist scientific character that guides the sciences in society. The classic method of studying Law is based on monist analysis to assess legal norms.

Norberto Bobbio (2005)11, in his Theory of Legal Norms, starts from the premise that “law is a set of norms”, referring to these as norms of conduct that translate into what is “obligatory”, in which what is “allowed” and what is “prohibited”. In a simple analogy, and at the same time efficient, he maintains that the individual's life is like the path of a pedestrian in a big city.

There, signposts will indicate that a certain path is prohibited and another is mandatory.

Thus, the study is restricted to a monodisciplinary approach, based on the supremacist idea of Law defended by Kelsen in his dialectical rhetoric of positivism, putting aside other sciences for the deepening and knowledge of facts and acts.

Throughout the 20th century, the theoretical model called legal positivism predominated in Law Schools, which is why legal education has neglected the contributions of other sciences and other areas of knowledge. Hans Kelsen is the theorist who takes legal positivism to its highest level. In 1934, he published the Pure Theory of Law, in which he resumed the theses of legal positivism from the 19th century. In this work, he chooses the autonomy of legal science as the fundamental problem of his thesis and gives it its own method and object, capable of guaranteeing the jurist scientific knowledge of law. To this end, it establishes a methodological principle, the principle of purity, with which it intends to reduce the complexity of the object of law by moving away from other sciences. In Legal Science, intrusive, potentially disturbing, epistemological and axiological interferences. For

4 11 9 10

Machine Translated by Google The study discusses the implications of public legalism in the expected new administrative, economic and social situation, seeking to emphasize innovative methodical aspects to assess normative quality and its implications for administration using economic analysis of Law. Therefore, we specifically look for:

likely if the civil liability that falls on the father were accepted.

• Analyze the framework of public reformism, with the help of different AED paradigms and postulates with a view to delving deeper into the factors associated with poor administration performance, wear and tear and discredit in the current context of change.

The legal norm is the source par excellence of Administrative Law, constituting the positive law of the discipline, which covers a wide hierarchical range of norms. From the guarantor theoretical matrix, the concepts of validity and effectiveness, problematizing them and proposing a different characterization of the traditional categories. In this sense, validity and validity were distinguished more precisely, identifying the first with what would traditionally be considered 'formal validity'. The expression validity would be restricted to identify 'material validity'.

However, with regard to material validity, we sought to show that its conception should not only reflect the consonance of directly linked content, but also the consonance of explicit or implicit values in legal norms. In such a way, the entire value systematic dimension would be apprehended in the discussion of validity. We sought to re-dimension what is traditionally known as legal effectiveness and social effectiveness. Therefore, the use of the word effectiveness is restricted to legal effectiveness - normative applicability. Social effectiveness, on the other hand, would be divided into two dimensions: effectiveness, referring to real and constant normative application; and efficiency, referring to the fact that one or more standards, when applied, mostly achieve their objectives.

1.2.1 General Purpose

The central objective of the study is to contribute, through the method of Economic Analysis of Law, to the New ideology of legal knowledge that promotes coexistence of law with other sciences in argumentative-dialectic and logicaldeductive support, normative effectiveness oriented to respond to current challenges and futures of Public Administration taking into account cyclical and structural changes.

• Study the current administrative framework that guides the principles of Administration.

The establishment of operational systems that evaluate the real conditions of application of standards should allow a drastic reduction in the number of instruments that are out of adjustment with reality or context. The objective is to evaluate the degree of interdependence of the variation in the contexts of application of standards, which leads to the need for standards and assumptions for the effectiveness of the standard. The concept of normative pertinence is born as the analytical basis based on a set of material constraints or

This implies the search for considerations that supposedly mean adapting the parameters used to the legal reality to the demands of current experience.

However, the relational side that must be safeguarded between the father and the son (the subjective side) is not considered, that is, after the conviction of the duty to compensate, the father, as a rule, would no longer have the environment to rebuild the relationship or at the same time On the contrary, he would be definitively distanced from his son by the barrier erected by the norm. Faced with the situation, the Magistrate can, in the first approach, act according to a simple interpretation of the norm (being), as a second option he can resort to there is a multiple interpretation and application of the norm, seeking to ascertain the social consequences

1.2.2 Specific Objectives

immaterial elements inherent to the efficiency of norms (justice). The relevance of the norm can be configured as a principle of validity of the norm, as it is the main requirement for the effectiveness and efficiency of the legal norm. The law may exist but its application does not adjust to the reality of the moment, leading to it contributing to the restriction or limitation of progress and prosperity. The law must adapt to changes and be adjusted so that it is relevant to the national objectives of promoting justice, peace and development. This implies saying that the law cannot be seen in a static prism. They must meet the criterion of adaptability and suitability. Furthermore, the material consonance between legal norms should not only be seen as a direct correlation between isolated norms, but also as a correlation of one or more norms with the legal system as a whole. With this, the problem of material validity becomes not only a vertical, hierarchical one, but also a horizontal evaluative problem.

5

1.2 Objectives:

Machine Translated by Google Hermeneutics12

Quite the contrary, it requires the originality and diversity of the knowledge that produces and systematizes about a given object, a given practice, allowing for a plurality of contributions to more consistent understandings of this same object, this same practice." Interdisciplinarity explores the different fields of knowledge seeking to establish in a crosspurpose manner, the application of one discipline to analyze the other. There is no absolute truth, which is why scientific knowledge cannot be absolutized (conservative).

So that the sociological, historical, anthropological, philosophical or political points of view are not external to it (to dogmatics), but rather constitutive moments of dogmatic investigation In short: “the law” is not just a normative statement, but the entire system of implementation which results in a real normative sense. The New Rhetoric was in the field of legal knowledge, seeking to promote the coexistence between analytical demonstration and dialectical argumentation, both originating from ARISTOTLE. Law is the reflection on possible decisions from the perspective of rhetorical argumentation

Law has not developed adequate instruments for the analysis of real-world problems.

regarded as the source of Understanding and Interpretation is a branch of philosophy that struggles with human understanding and the interpretation of written texts . Legal Hermeneutics brings greater security to the legal world with regard to the application of the law, and, at the same time, ensures that the legislator has a preview of how the legal text will be applied, even before it comes into force. It is a legal methodology aimed at justifying legal decisions that have a normative character. It is a specific tool that aims to understand the applicability

of a legal text and to remedy the interpretative vices. In simpler words: when a law comes into force, as with any and all literature, an understanding of its content is required. With regard to the logical process, "what is intended is to unveil the meaning and scope of the norm, studying it through logical reasoning, analyzing the periods of the law and combining them with each other, with the aim of achieving perfect compatibility" (DINIZ, 2002:156-157). The historical interpretative technique is based on the analysis of the norm's antecedents, researching its entire legislative itinerary, the factual circumstances that preceded it and gave rise to it, the causes or needs that induced the body to draft it. Such research is very useful in order to capture the exact meaning of the rules (ratio legis) and the results they intend to achieve.

Video on Hermeneutics: http://www.youtube.com/watch?v=4uR2cts9CWY

In turn, in the systematic process, the interpreter, assuming that the legal system is not made up of a single normative system, but of several, which constitute a harmonious and interdependent set, will consider the system in which the norm is inserted, relating them to a with other norms concerning the same object. Hermeneutics in its interdisciplinary view breaks the fixed line of positivism. They seek explanation and correct interpretation of the various institutes and norms, in order to obtain a real understanding of the entire legal world, serving as assistance and subsidy for those who venture into this area of human knowledge. In order to develop this study, the jurist must have a free nature, that is, he must have a way of thinking that is not compromised by prejudices and assumptions, so that new concepts can emerge. The jurist must also have vast knowledge about Law, as only those who know it are capable of establishing concepts and criticisms, bearing in mind their responsibility in producing serious work that will contribute to the legal world.

• Deepen the legalistic implications in Administration in the current situation markedly plagued by rapid changes in the search for new approaches using the AED, both for administration and for the measurement of legal standards.

,

• Build analytical methodological legal foundations and normative intelligence oriented towards the decisionmaking processes of legal acts and facts, with a view to greater rationality of legality (positivist), thereby moving away from monolithic disciplinary considerations.

1.3.2 Interdisciplinary Law

1.3.1 Legal Hermeneutics

Law is not bound by despotic truth, hence the freedom of the interpreter to attribute meaning to Law. Likewise, the interpreter's will (will) cannot be eliminated in his hermeneutic task. From this angle, interdisciplinarity does not aim at the unity of knowledge but at partnership and mediation of partial knowledge, in the creation of knowledge. It is true that this element can be controlled in the legal discussion. The interdisciplinary nature must be reconsidered as more than a collaboration, it turns theory into the only relevant knowledge in the study of law. The interdisciplinary perspective does not hurt the specificity of the professions nor the specialty.

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1.3 Methodology

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Machine Translated by Google 14 FEIJÒ, Carlos (2012) The Normative Coexistence Between the State and Traditional Authorities in the Angolan Plural Legal Order – Doctoral Thesis. Edições Almedina, SA, Coimbra – Portugal.

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1.4 Administration and the Public Service in Africa

7 GOUVEIA, Jorge Bacelar (2014) Manual of Constitutional Law - Volume I. Publisher: Almedina. Collection: University Manuals

POULANTZAS, Nicos (1985). The State, Power, Socialism. Rio de Janeiro: Edições Graal, 2nd edition.

Feijó (2012) maintains, following Caparros, that if the only compass available to the legislator is the formalism of the norm, if justice is not his guide, if we admit that the law is considered as a mere factor not a value, the content of the norm does not reserve for any transcendent principle. Reflection on the history of law allows us to observe that systematic thinking was not a universal constant. This isolation of law from other sciences leads to the inadequacy of the functional model of administration given the current dynamics. These are critical gaps that the legal world will not be able to fill with goodwill alone. In administrative action, rules coexist that some

State intervention has always been a subject of wide discussion when considering the purposes and impact of public action and performance. We seek to fulfill the role of the State by taking into account the multiple instruments of action aimed at satisfying, regulating, preventing and safeguarding harmony and justice within society. The current situation is characterized by intense transformations in social, political and economic relations, by accelerated intellectual and technological development. In view of the globalization scenario, it is observed that knowledge has occupied a prominent place in public organizations today. The Public Administration is guided by the respect of specially enshrined legal principles that govern its action. This subjection substantiates the idea of legalism, that is, the Administration needs legal authorization to act, unlike private individuals who are only prevented from doing what the norm prohibits, for everything else, freedom of action and private autonomy are valid. Civil service obeys a set of guiding principles. In this domain, two main principles aimed at the quality of public service are emphasized: (i) The principle of Legality; and (ii) the principle of Efficiency.

1.4.1 Fundamentals of Public Administration

and not from the logical-deductive demonstration. Legal discourse (given several possible meanings of norms) only becomes coherent and rational based on a systematizing meta-criterion. Legal rationality is only achieved by overcoming the aporetic (of the problem), demonstrating the ability to construct a normative totality taking into account factual reason. The view of the isolated norm shifts to a relational view of law with other normative sciences such as economics, Administration, etc. The interpreter cannot understand the reality of the present, hence the need to look to the past in search of alternatives for the future.

As Poulantzas13 says, “the executive and administration monopolize the role of organization and direction of the State vis-à-vis the bloc in power, that of elaborating a long-term general political interest of that bloc and of reproducing hegemony”. Public Administration is, in a practical sense, exercised through public services, which are all those essential to the community and, as such, declared by the competent powers, whose provision is the responsibility of the State. Professor Feijó (2012)14 considers that the administrative function is performed by Public Administration, understood in the organic sense. However, Public Administration is not limited to the State, i.e., it is not only made up of entities (bodies and services) belonging to the legal entity State. This postulate supports the idea that Public Administration15 should not only be seen as bound by State legalism. As a general principle, it is assumed that all justice means ensuring the right, but not always the law means ensuring justice. This implies that the standard does not always produce the desired effects, this is due to its effectiveness or efficiency in the process of drafting it. The discourses of positivism make it clear that Public Administration is subordinated to Law.

Public Administration, seen from a legal perspective, is subordinate to the Law, which implies that all acts and actions must be in line with the Standard (Principle of Legality). In effect, the approach highlights the monodisciplinary nature of the methodology of legal analysis, which leads to the normative conception of law being strictly oriented towards the positivist facet, putting aside a whole set of scientific premises that could support the approach analysis of norms emanated by positive law. As a result, there is a crisis within the functionality of the Public Administration. Efforts have been made to rationalize public activity, seeking a more active administration in favor of the citizen, through different administrative reform initiatives. Despite these efforts, the results are still below what constitutes the citizen's expectations.

Thus, despite the merit arising from the postulates of the pure theory of law, we see the distancing of other facets of analytics that could serve as criteria for evaluating norms.

Machine Translated by Google 19 18 16 17

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FARIA, Edimur Ferreira de (2007). Positive Administrative Law Course. Belo Horizonte: Editora Del Rey. Marques, Raphael.(2012) Administrative Law and Post-Positivism: The Crisis of Legality and the Empire of Law. AEUDF. Brasilia.

MELLO, Celso Antônio Bandeira (2006). Administrative law course. 20th edition. Sao Paulo: Publisher Malheiros. MEDAUAR, Odete. (1999). Modern Administrative Law. 3rd edition. São Paulo: Editora Revista dos Tribunais.

On the contrary, both in antiquity (Greek and Roman theories) and in the low middle ages, men who think about Law did not adopt systematic thinking, the legal system is an order of general principles considered as fundamental values. And the introduction of values within the scope of legality does not mean “material fairness”, but the formal adequacy of a valuation. Legal propositions valid in a given material scope are deduced from axioms, using a purely axiomaticdeductive method.

of superior norm, binding on all the powers of the State”.

1.4.2 Normativism and Public Legalism

The principle of legality expresses the administrative connotation of the rule of law. For the Administration, the principle of legality translates into submission to the norm. In the current context, it is necessary to begin a reflection on the principle of legality, in its different doctrinal approaches and its connection with Public Administration. According to Edimur Ferreira de Faria16, the principle of legality was inspired by article 4 of the Declaration of the Rights of Man and the Citizen, of 1789, and became reality after the adoption of the Rule of Law. The evolution of the concept of legality and, more than that, the changes that occurred in the connection of this principle with Public Administration, denote the importance of its contextual character. It is forced to think that the principle of legality must, imperatively, be worked on in accordance with contemporary reality.

The principle of legality imposes on the Public Administration the duty of obedience to norms and the law; It must, therefore, respect constitutional and legal standards, but also international standards and the rights and legitimate expectations of citizens. The principle of legality determines that "no one will be obliged to do or not to do something except by virtue of a rule". In this sense, it conceptualizes that legality, as a principle of administration, means that the public administrator is, in all his functional activity, subject to the commandments of the norm and requirements of the common good, and cannot depart from or deviate from them, under penalty of committing invalid act and disciplinary, civil and criminal responsibility, according to each case. The principle takes on its own contours, as the public administrator is responsible for carrying out everything that arises from the express will of the State, expressed in a standard, and it is not permissible for him to exercise the principle of autonomy of will, as his main objective is to achieve the ends for which he is proposes the state.

Furthermore, as Odete Medauar18 explains, the Administration's link to the norm increases, following a path that goes from a more liberal meaning for administrative practices to a highly restrictive meaning. And it is within this variation of interpretative possibilities that the principle of legality must be worked on, and a critical analysis of the meaning of the word “norm” is also necessary, in the search for the meaning that best satisfies the institute in our system. For Celso de Mello (2006)19 it integrates this doctrinal part, understanding that the expression legality must, therefore, be understood as “conformity to the norm and, successively, to the subsequent norms that, based on it, the Administration disposes to regulate more strictly the his own discretion", "acquiring then a more extensive sense".

While the Principle of Supremacy of Public Interest over private interests is the central point of any State – after all, in any State public interests prevail over private interests – the Principle of Legality is the central point of the Rule of Law. Rule of Law is the politically organized State, which obeys its own norms. The demystification of the idea of perfection of the norm in the strict sense, the growing protagonism of administrative bodies, the distance between the theoretical formulation of the political-philosophical foundations of the principle of legality and its effective implementation, demonstrate that the activities of Public Administration must, now, be guided by the norm in a material sense. Saying that the administrator can only do what the norm determines does not mean giving him any freedom: the administrator has discretionary action, within the limits of the norm. According to Marques (2012)17:

may be considered of merit, but there are also norms that govern public activity.

“The principle of legality is not what it used to be. The standard lost prestige and importance. The reasons are several. Norms have sometimes themselves carried the burdens of injustice and wrongdoing. In other cases, norms have become entangled in the solution of concrete cases, losing the magical dimensions of generality and abstraction. Moreover, in view of the drifts of state legalism, modern constitutions claim their

Machine Translated by Google OTERO, Paul. (2003). Legality and Public Administration. The meaning of the administrative link to legality. Lisbon: Almedina. PEREZ, Marcos Augusto. Democratic public administration: institutes of popular participation in public administration. Beautiful Horizon: Forum, 2004. 9 21 20

More recent works by some authors, such as Paulo Otero (2003)20, argue that the space of legality is

beginning to suffer the wear and tear caused by the demystification of the perfection of the norm, and that the content of the juridical-positive dimension of legality is weakened, and points to a greater protagonism of administrative bodies in the application or constitutive realization of Law. Paulo Otero writes in his work “Legalidade e Administração Pública” that “the norm proves to be insufficient, obscure and ineffective to face the new collective needs and the very content of legal norms loses precision, determination and congruence, finding legality rooted in contradictory interests and populated by an intrinsic normative conflict”. Emphasizing the distance between the theoretical formulation of the political-philosophical foundations of the principle of legality and its effective implementation, the author states that the binding legality of Public Administration does not only include norms originating from sources outside the Administration, but also involves considerable normativity elaborated by administrative bodies. The norm must be seen from a progressive perspective that promotes the public service, and the postulates must adapt to the pace of society's evolution and current demands, and not act as a restrictive factor of progress and innovation in the public sector.

For PEREZ21 Public Administration currently assumes the role of harmonizing the behavior of social actors, seeking to be more transparent, distancing itself from purely managerial and neoliberal bureaucratic models. It is observed that the Public Administration starts to adopt new methods of action aimed at the culture of dialogue, to favor the work of society on itself and at this point we can relate the issue of transparency with the role of electronic government in the modernization of public administration . It is assumed that, through reducing bureaucracy and simplifying procedures, there is a positive effect on improving the provision of services. However, the reform of the Public Administration must focus on the reform itself.

The bureaucratic model is accused of being inefficient and too slow to react to the needs of citizens and changes in the environment in which it operates. He is also accused of harming the

In fact, the more orthodox bureaucratic model focuses its concerns on “guarantee” aspects and, therefore, focuses its attention on legal-formal aspects. However, the complex reality of the modern pluralist society dismantled the possibility of success of the imposing purely bureaucratic model. The bureaucracy of the Welfare State, structured for a uniform and impersonal administrative performance, thought along the lines of a “production line”, according to the Fordist model of mass production, does not always adapt to the demands of the modern pluralist society, of working classes differentiated in multiple facets, with different interests, aspirations and ways of life. (Junior BAPTISTA, 2012fi , p. 2, apud Xavier 2012)

1.4.3 The Crisis of Public Intervention

It implies saying that there will be no reform if the postulates that guide the administration remain in rigid normative and legal prisms. For effective, fast-acting administration, it is necessary to introduce flexible management mechanisms. Thus, it can be said that the collapse of reformist movements in Public Administration is associated with their technical and highly administrative form (turned towards its own object and not towards the purposes of the administration, which is to serve the citizen). The measures introduced within the framework of the reform, in many cases were not accompanied by operational instruments and motivational policies (commitment) of the employee. No account was taken of the need to eliminate the boundaries defined by administrative rules and procedures, to the detriment of rules aimed at the good performance of the administration.

However, the logic of legalism tends to lose its originality, insofar as, in the current context, it is imperative to highlight pluralist principles. According to Celso de Mello's (2006) view, the Administration would be positively linked not only to the norm in the strict sense, but also to eventual norms that may exist, produced by the Administration itself to regulate its subsequent behavior. However, the initial idea of the principle of legality applied to Public Administration has been changing over time, since, from an operational point of view, that total submission to the norm made administrative activity unfeasible and paralyzed. The positivist conception and the very sacralization of legality led to an exacerbated legalism, resulting in an excessive formalism of normative acts, with the absurd predominance of the cold letter of the norm over its spirit or over the dynamic reality of society. In this sense, Baptista Júnior understands:

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Mazza, Alexander. (2012). Administrative law handbook. 2nd. edition. São Paulo Brazil

no 214, Oct/Dec 1998, pp. 69-98, p. 77. XAVIER, Gabriela Costa. Society's participation in administrative decisions and the principle of efficiency. Jus Navigandi Magazine, Teresina, year 17, no. 3403, 25 Oct. 2012. Available at: http://jus.com.br/artigos/22885. Accessed on: May 12, 2015.

BULOS, Uadi Lammego. “Administrative Reform”. Journal of Administrative Law. Rio de Janeiro: Renew,

Source: http://portugues.doingbusiness.org/rankings

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opening of companies Obtaining construction permits

Botswana

Business Environment in Africa: 2016

According to Xavier (2012)24, initially, the Public Administration model was developed under the direct influence of liberal and positivist doctrines. In this model there are norms that organize,

The bureaucratic model structured in this way, in the vast majority of situations, was efficient in the face of routine procedures, moreover, it is equipped with mechanisms to protect against corruption and, above all, it is able to conduct the actions of the Public Administration in accordance with the principle of legality. In this way, the regulation and elaboration of administrative manuals functioned as a shield against predatory practices, such as, for example, clientelism and administrative immorality within the public machine. The exercise of the administrative function cannot be guided by the will of the Administration or public agents, but must obligatorily respect the will of the norm. In other words, the principle of legality enshrines the subordination of administrative activity to legal dictates. This is an important guarantee of the Rule of Law: the Public Administration can only do what the people authorize, through enacted norms22.

The graph above reveals the role of administration in rationalizing public activity in favor of the citizen. It is noted that the poor performance has contributed negatively to the establishment of conditions of attractiveness of the instrument in Africa. The business environment continues to be challenging, which places as a key premise the need for greater flexibility in public administration. Excessive generalism may have dictated the law's failure to adapt over time. The insertion of the principle of efficiency, alongside the classic vectors of legality, impersonality, morality and publicity, was based on the argument that the state apparatus must prove to be able to generate benefits, providing services to society and respecting the taxpayer”23. The principle of legality, which is still the foundation of state action and the pedestal of Public Administration, often represents a real obstacle to the performance of public agents in the quest to meet the aspirations of today's pluralistic society . The installed crisis brings with it harmful effects on the life of the population, which is now demanding an increasingly active role in different spheres.

development and economic growth. This model is seen as a means that allows the creation of agents and bureaucratic processes that develop their action with a single purpose, the increase of their well-being and their power. This results in criticism of the State's inability to meet social demands through public policies. The rhetoric of improving the public service invokes that, although decisive and significant steps have been taken in the institutional domain, in the rooting of a new awareness of the role and action of the State in the attempt to meet the needs of the citizen, its approach still does not fit to current challenges, given its administrative weight.

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Machine Translated by Google 25 http://keepcalmandtalkaboutadministrativelaw.blogspot.pt/2012/12/o-dever-de-obediencia-na-administracao.html 26

to the Law and is subject to its regulatory norms. Prof. Freitas do amaral25 draws attention to the fact that, although apparently in an administrative system that is subject to the principle of legality, the question of whether subordinates should or should not comply with illegal orders should not even be asked. For Prof. Freitas do Amaral the duty of obedience to illegal orders is an exception to the principle of legality, but it is an exception that is admitted by the Constitution. Prof.'s opinion Vasco Pereira da Silva is that the duty of obedience ceases whenever fundamental rights or human dignity are at stake.

Isolation of Law from other social sciences: the predominant legal-formalist culture associates law with a rational construction of norms by an idealized legislator, resulting in a legal science without society alongside social sciences without law accompanied by the isolation of law from other social sciences social sciences and the lack of dealing with the real world problems that the administration goes through, is a gap in the legal education that is not filled only with good will or progressive postures.

1.4.4 The Sociological Defense of Law

In society, man cannot live without observing the rules of conduct that regulate his coexistence with others. The effectiveness of law, the object par excellence of Legal Sociology, is a very complex topic. The very term effectiveness suggests at least two meanings from which to undertake its examination. First, it is necessary to emphasize the adequacy of the legal norm to the reality of the moment in question. Note that, in the quotation above, the idea of time plays a fundamental role with regard to the possibility of effectiveness of the norm. But it should not be taken in its absolute dimension, it is not just a matter of time. What is on the agenda are the changes that occurred in society at a certain time; time, in itself, does not tell us anything without the presence of these changes in the social fabric26 In this sense, it is understandable that a norm can be in force without, however, fulfilling its social purposes.

The social consequences of the application of the law, especially the application resulting from a judicial process or even the analysis of the implications of the law, is an element of little study in law,

According to Barbato (2003)27 "however, a norm may arise that will never be complied with due to an absolute lack of resonance within the community. its dictates, or change its meaning so that it can be partially implemented... This means, evidently, observing the compatibility between what the norm says and the configuration of the social fabric. Secondly, there is a more objective meaning: the possibility for the norm to achieve the purposes it was proposed when it was formulated and subsequently published. These are norms that, because they do not reach the moment of effectiveness, cannot be said to be positive". The sociological dimension justifies that the law is only realized perfectly when the facts of life are subordinated to the legal norm that predicted and regulated them. If there is a defect in this subordination, it is said that there is an imperfection in the legal organization of the society. We are faced with a sociological perspective of law. The last criterion for valuing the legal norm, the last dimension in which it should be analyzed, concerns its effectiveness, or as it should be better understood, its effectiveness. The fact that a legal norm validly exists does not necessarily imply that it is constantly followed. Norberto Bobbio asserts that the investigation to ascertain the effectiveness or inefficiency of a norm is of a sociological historical nature, it focuses on the study of the behavior of the members of a certain social group and differs, either from the typically philosophical investigation around justice, be the typically legal one around validity.

they limit and regulate the actions of everyone, including state power itself. Therefore, the State subordinates itself

Defining the contours of the sociological dimension of the legal norm, Marcos Bernardes de Mello states that: If there is a mismatch between the incidence – which takes place in the world of our thoughts, therefore, impossible to be modified in its veracity – and the application – which is an act externalized human life, that is, objectified human life -, it is demonstrated that either the social reality is different from the prescribed norms, and then they do not faithfully represent the values of the group, or the apparatus responsible for realizing the law is unsatisfactory. Of all the types of ineffectiveness of the legal norm, Norberto Bobbio says that the most ineffective are those that are violated without even applying coercion. As previously discussed, the valuation of the facts of life led the legislator to recognize as a value worthy of legal protection the importance of preserving, in favor of the operator, a set of guarantees that allow him to explore the good of his activity.

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XAVIER, Gabriela Costa. Participation of society in administrative decisions and principle of efficiency. Jus Navigandi Magazine, Teresina, year 17, no. 3403, 25 Oct. 2012. Available at: <http://jus.c om.br/ar

Machine Translated by Google 1.5 The Administrative Reform

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Administrative Reform is rooted in the matrix of public management based on the principle of efficiency clearly required in the new way of acting in administration. Emphasizes a more active public servant and the time to satisfy the wishes of the citizen. However, we cannot talk about the reform without deep reflection on the legalism of the administrative machine. There is a growing effort in search of efficiency, innovation and modernization of administrative structures and services, however the functionality prevailed by the excessively formalistic precepts and inadequate of the current reality prevail the flexibility of the services. Thus, reaching a stage of efficient public management implies breaking through the barriers of bureaucracy, the adequacy of

1.5.1 Reformism and New Public Management

Bureaucratic administration, of a procedural nature28, has always been discussed given its legalistic apparatus that governs State action. The excess of hierarchy in the decision-making process, as well as the administration's inflexibility, draw attention to vices within the administration itself. Managerial Administration, on the other hand, aims to give greater flexibility to administrative action in search of greater efficiency, reasonableness and economy. It excels in agility and efficiency in administrative action29, emphasizing the achievement of results, to the detriment of processes and rites, and encouraging popular participation in public management. The reforms initiated in the 1980s lacked government planning and more effective means of implementation. There was a relative distance between planning, modernization and human resources, in addition to the lack of integration between the bodies responsible for coordinating the reforms.

procedure and an administrative machine adapted to the new requirements. It implies a structural, functional and relational change in the state apparatus. The notion of guarantor validity is perhaps the most decisive point as a general theory of Law, as its formulation advocates the predominance of the material link between the legal order and fundamental rights. It takes into account the fact that it is necessary to rethink the normative postulates of law so that the Justice of Law can be ensured. As such, it is important to invest in standards analysis methodologies so that the impact and effects of standards can be predicted before they are issued.

The results of this experience were relatively disastrous and resulted in the multiplication of entities, the marginalization of civil servants, administrative discontinuity and the weakening of the system. For Martins30, State reform can be characterized as a paradigm of institutional transformation because it contains peculiar definitions in relation to the character and role of the State (content or direction) and also in relation to how to implement it (process).

especially if taken from the bias of the elaboration of statistical data on judicial decisions. That is, the social impact of judicial decisions is not – and has never been – analyzed systematically, through appropriate analytical processes that allow reaching scientific conclusions on how this Power decides and what are the impacts of such decisions on society. Finally, for Weber, sociology must establish a radical distinction between knowing and valuing, between fulfilling the scientific duty of seeing the truth of facts and fulfilling the practical duty of defending one's own ideals. Weber does not believe that science can guide social action, which is why legal sociology would not be authorized to pass value judgments on social inequalities and exclusions that are at the root of various problems related to judicial administration.

Briefly, this is a peculiar appropriation of principles and practices of the so-called New Public Management, in particular those associated with its initial managerialist phase31, along the lines of the “Washington consensus”32.

30 Humberto Falcão Martins. Administration for development – The relevance in pursuit of the discipline. Advanced program in contemporary public management.

unilateral station of will of the public administration whose purpose is to constitute, declare, confirm, alter or deconstruct a legal relationship between it and the administered or between its own entities, bodies and agents.

32 The expression was coined by John Williamson (1990) to refer to the set of liberal policies that would illuminate the economic restructuring and reform of Latin American states. The ideals conditioned the granting of credit and the condition of credibility to developing countries to the adoption of tough fiscal adjustment measures that implied the reduction of the State.

29 According to Mazza, Alexandre. (2012). Administrative law handbook. 2nd. edition. São Paulo: Brasil, pg 138, the central notion of managerial administration is the principle of subsidiarity whereby the State should only be attributed activities that are unviable for private initiative.

tigos/22885>. Accessed on: May 12, 2015.

31 This type of focus is illustrated in the pure managerialism and consumerism of the British experience. NGP was born managerialist in the 80s, strongly inspired by minimalist reforms and proposing the application of business management technology to the State, based on paradigmatic experiences. (Abrucio, 1996; Martins, 1997; Martins 2001).

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34 JA Oliveira Rocha (2001) The Relations between Political Power and Officials Communication in Colloquiums on the Statute of Municipal Officials. CEDREL. Lisbon

1.5.2 Administrative Reform and the Public Service

This model is based on a normative framework, which must be strictly complied with, as established a priori. In this context, the public agent considered efficient is the one who acts strictly in compliance with the manuals and regulations, and who, therefore, does not present any deviation in behavior that raises doubts as to his performance. In this context, the Public Administration does not have a certain margin of discretion sufficient for decision-making in exceptional situations not provided for in the regulations35. However, this Managerial Reform should not be understood as the only source of containment of public expenses, especially with the reform power given to public administrators for the restructuring of their civil service, which includes the dismissal of civil servants due to excess staff when not if the maximum limit established for personnel expenses is reached.

Law strives for justice and justice, among others, for equity and the well-being of society. The central issue of this premise is that in the first instance the law must be seen in a progressive compendium; in the background, legal operators are invited to reflect on the quality of the decisions they make, taking as a reference the results, impact and effects arising therefrom; and third, legal decisions (norms) must be aligned with the natural norms of society. There is an excessive tendency for law to dominate over other sciences –

supremacy (exclusive character), which somewhat limits the inclusive scientific character that guides science in society. Today, the quality of the public service is discussed, however, the influence of law in the flexibility of Public Administration is put aside. The excess of legalism has secularly made the public service static, and the current reality demands innovative solutions and with the administration living in a closed and dogmatic world, it cannot cope with the dynamism and effects arising from the current national situation and international influences such as technological advances , globalization and neodominant geopolitical strategies.

NOGUEIRA36 emphasizes that State reform goes beyond financial and administrative aspects. It implies the democratization of the State, the 'renewal of its criteria for action and a reform of the standards of 'relationship between State and society, it depends on an intervention that, encompassing the entire public sphere, converts State actions into effectively public actions, and control by society occurs through the rescue of democratization and politics. It is understood that the Managerial Reform came to break the bureaucratic paradigm of Public Administration, generating efficiency, effectiveness, effectiveness and quality in the public service, with a coherent administration of its scarce resources, seeking management alternatives that favor the country's growth, as the citizen pays for the services of the State and wants the qualitative return of the

The central issue in the context of administrative reform is, firstly, the procedural adequacy of public acts, taking into account the nature of the complexity of services.

come into effect. The validity of the standard in books is not enough, but its full implementation and effective compliance is worth it. As shown by the author cited by Xavier (2012)33, the excess of formalism and the legal rigidity of the bureaucratic model stifle the Administration's action in the face of exceptional situations, arising from the multiple interests of society, not foreseen in the norm. Thus, considering the diverse demands of the plural society, the action of the public agent based only on the dictates of the norm does not prove to be adequate and sufficient for all the cases presented. It is necessary to have a certain margin of decision-making freedom so that the Public Administration can act in exceptional situations in observance of the common good, situations in which the provisions of the rules and regulations do not lead to efficient decisions.

Second, within the framework of the rationalization of the public service, it is important to carry out a functional analysis so that the practicability of the procedures in the framework of the provision of public services can be assessed. The slowness, inertia and bureaucracy of the administration are pointed out as being associated with the procedural legal rigor, without taking into account the adequacy and scope in the conjuncture. For Rocha34, the new public management model insists on the adoption of new control processes for public services (“Performance Indicators”). This insistence is predominantly due to the work carried out within the OECD, which has generated a culture of evaluation and a fascination with indicators. Since it is not appropriate to subject public organizations to market norms, but it is important to evaluate their performance, it is only possible through the construction of indicators that allow measuring their efficiency, effectiveness and quality.

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35See: http://jus.com.br/artigos/22885/novos-rumos-da-administracao-publica-efficient-participacao-administrativa procedimentalizacao-consensualismo-e-as-decisoes-colegiadas#ixzz3ZvX3WzX2

year 17, no. 3403, 25 Oct. 2012. Available at: http://jus.com.br/artigos/22885. Accessed on: May 12, 2015.

NOGUEIRA, Marco Aurélio. The possibilities of politics: ideas for state reform. Rio de Janeiro, Peace and Land, 1998.

XAVIER, Gabriela Costa. Society's participation in administrative decisions and the principle of efficiency. Jus Navigandi Magazine, Teresina,

Machine Translated by Google BULOS, Uadi Lammêgo. “Administrative Reform”. Administrative Law Magazine. Rio de Janeiro: Renew, no 214, Oct/Dec 1998, pp. 69-98, p. 77.

KELSEN, Hans. Pure theory of Law. 2nd ed. São Paulo: Martins Fontes, 1987.

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41 FEIJÒ, Carlos (2012) Normative Coexistence Between the State and Traditional Authorities in the Angolan Plural Legal Order – Doctoral Thesis. Edições Almedina, SA, Coimbra – Portugal.

39 FEIJÒ, Carlos (2012) Normative Coexistence Between the State and Traditional Authorities in the Angolan Plural Legal Order – Doctoral Thesis. Edições Almedina, SA, Coimbra – Portugal.

37 ROSEANE MILANEZ DE FARIAS (2000). ADMINISTRATIVE REFORM: IN THE SEARCH FOR QUALITY OF PUBLIC SERVICE. RECIFE

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Within the framework of the normative reform of administrative procedures, the economic analysis of law provides a set of instruments for prior and successive assessment of the impact and implications of the norm. In this way, it is imperative to adopt analytical principles based on the predictability and anticipation of the expected results (efficacy), the effects and the analysis of the implications of the norm. Hence the importance of the interdisciplinary approach. Therefore, it is important to know the real process of “enforcing” standards and the effective result of their application. The jurist must also have vast knowledge about the Law, as only those who know it are capable of establishing

1.5.3 Positivist Dogmatics and Normativist Reformism

The positivist intention was to give unity to a set of fragmented legal norms,

For Professor Feijó (2012)39, positivist dogmatics are based on a monist narrative, statehood and rationality to maintain its premise that the law is the law. Mayra de Sousa Scremin, quoted by Feijó (2012), argues that the theory of the legal system was created in the late 18th and early 19th centuries by positivism. Thinking Law, as HANNAH ARENDT teaches, is not restricted to despotic truth, hence the freedom of the interpreter to attribute meaning to Law. Likewise, the interpreter's will (will) cannot be eliminated in his hermeneutic task. It is true that this volitional element can be controlled in legal discussion. Administrative obedience to the law is present as a condition for the validity of norms. In a formalist theory of Law (Hans Kelsen40 more intensely, Norberto Bobbio), normative validity is confused with the fact that the norm belongs to the order, that is, with its formal validity.

removing arbitrariness and uncertainties: to build a single, coherent and complete legal system. This thesis supports the conviction of the monodisciplinarity of law by assuming that the reason why we call the doctrine of law “pure” stems from the fact that it proposes, as its sole purpose, to obtain a precise knowledge of Law, and to be able to exclude from this knowledge everything when, strictly speaking, it does not fit within what, in fact, deserves the name of Law (Feijó, 2012). Thus, the law in

For Professor Feijó (2012)41, positivist dogmatics are based on a monist narrative, statehood and rationality to maintain its premise that Law is the norm. Bobbio, in a few words, explains Legal Positivism: "... legal positivism is born from the historical impulse for legislation, it takes place when the law becomes the exclusive source – or, in any case, absolutely prevalent – of law, and its ultimate result is represented by the codification. Kelsen, in the development of his theory about the legal system, formulates the idea of nomodynamics, starting from the idea that the norms would be staggered in a hierarchical structure.

themselves 37. However, for the Administrative Reform, as Bulos puts it well: “The insertion of the principle of efficiency, alongside the classic vectors of legality, impersonality, morality and publicity, was based on the argument that the state apparatus should reveal itself able to generate benefits, providing services to society and respecting the taxpayer”38. The understanding that we try to express here is not that of being contrary to Administrative Reform, as this is necessary in the current scenario of Public Administration, but rather that it should continue without transgressing the fundamental rights and guarantees of public servants.

its dogmatic positivist conception does not leave room for other realities outside the normative conception and, as such, it does not consider dynamics and mutation as a result of advances in science and the factual reality in which Law must be felt. The legal methodology does not address the problems of research or the field of action of law in a pluri-analytical matrix. The legal framework elaborated along the lines of the orthodox administrative bureaucratic model did not follow the changes in society, nor could it, since it is evident that the norm cannot foresee all the situations that are presented in the concrete case. In a pluralistic society, in which the complexity and interests of various social segments are so diverse, the mass application of the generic norm does not translate into efficient action, nor does it satisfactorily meet all social strata and demands presented.

analyze the influence of the norm in society – its advantages and disadvantages; the driving and disrupting factors in the social, economic and political structure. The mandatory character of the norm does not imply that the norm will be respected in a specific legal order, it is necessary to attend to and understand the complexity and adapt legal rationalization to the normative postulates based on idealistic and interdisciplinary thinking.

Machine Translated by Google 42 Moreira Neto, Diogo de Figueiredo. (2014). Administrative law course: introductory part, general part and special part – 16th ed. rev. and current. – Rio de Janeiro: Forense, ISBN: 978-85-309-5371-3

concepts and criticisms, keeping in mind your responsibility in producing serious work that will contribute to the legal world. The most recent and robust trends point to the affirmation of the principle of efficiency, transcending the mere requirement of effectiveness, as well as, later, its full affirmation in the social environment, as effectiveness, which leads to the conclusion that good administration is the duty of the State and law of the administered. The new directions point to a renewed democratic Administrative Law, inspired by flexibility, collaboration, competition and, above all, reciprocal trust between society and the State42.

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45 OGUISSO, T.: SCHMIDT, MJ On the elaboration of legal norms. Rev.Esc.Enf.USP, v.33, n.2, p. 175-85, Jun. 1999. Calsing, Renata de Assis. (2012) THEORY OF LEGAL STANDARDS AND EFFECTIVENESS OF LAW. Magazine of the UFC Postgraduate Law Program. v. 2.32, Jul./Dec. 2012

43 BECCARIA, Cesar. On crime and punishment. Indiana: Hackett Publishing, 1986, and BENTHAM, Jeremy. The principles of morality and legislation. New York: Prometeu Books, 1988. See CARVALHO, Cristiano. The Economic Analysis of Tax Law. In: “Tax Law – Tribute to Paulo de Barros Carvalho. São Paulo: Quartier Latin, 2008.

The study of the interaction relationships between Law and Economy, called economic analysis of Law, began with the works of Cesar Beccaria and Jeremy Bentham, whose works introduced the notions of behavioral disincentives and utilitarianism, respectively43. The economic analysis of law focuses attention on the application of theoretical and empirical economic instruments and related sciences to expand the understanding and scope of law, improving the development, application and evaluation of legal norms, mainly in relation to their consequences, changes in economic policy in order to achieve an optimal or desirable situation. It is from this perspective that, based on the premises of the economic analysis of law, the author develops the Economic Theory of Law, aiming to analogize the behavior of agents and the State in relation to the normative emanation of the State.

The economic analysis can be seen in different quadrants of this cost and benefit structure; analysis of transaction costs, principal-agent relationship, the idea of expectations, externalities, opportunity and waste costs, returns on investment, etc. Some traditional institutes and categories of law that are rare today seek new meaning or new strength by reestablishing contact with other areas of knowledge, from which they had been moving away since the positivist path that began in the 19th century. Having established itself as an autonomous field, endowed with “objectivity” and “scientificity” — challenges of legal positivism — is today an objective that has been overcome to some extent. This is the reason for the prior examination of legal instruments, taking into account their purpose but also considering the economic, social and political costs for both agents and the State. The issue of impact and effects resulting from a given standard is also considered.

For Calsing, 201244 life is a constitutionally enshrined right. Legal norms cannot contradict this postulate, but rather ensure that it is fully exercised (the right over the right). It is not underestimated that the minimum contents to be respected in a given legal order are constitutionally predisposed, and this analysis comprehensively encompasses the adequacy of constitutionalized human rights. It translates the materialization, in the world of facts, of legal precepts and symbolizes the approximation, as intimate as possible, between the should-be

normative and the being of social reality. Therefore, although formal validity and material validity must be distinguished, the two ideas are indispensable and complementary for the exact understanding and dimensioning of Law in terms of validity and validity. The conceptual discussion45 of the structure of the legal norm, in some of its aspects, such as existence (2), validity (3), validity (4), efficacy (5) and effectiveness, when we will reach our conclusions about the theory of the legal norm and its effectiveness.

This paradigm offers several analytical segments for the study of norms to consider strategic analysis, legal microeconomics, analysis of implications.

Economic analysis, as a method of analyzing legal norms, emphasizes the use of stylized models of individual behavior, recognizing that economic agents react to incentives (a) In describing behaviors, economic analysis places great emphasis on the fact that agents they are rational and that their decisions/actions have consequences; and (b) From a normative perspective, the measure of social well-being used is explicit. The effectiveness of a standard is its acceptance by the community and its continuous and real use. The effectiveness, or as some authors call it, the social effectiveness of norms, is the effective compliance with the Law by society, which recognizes the norms and complies with them, thus implementing its commands, making its precepts effectively affect life Social. Effectiveness refers to the application or execution of the legal rule, with the rule being normative as human conduct. The effective norm incorporated into society's way of being, transfiguring itself into action. “The rule of law must, therefore, be formally valid and socially effective”. The precedent for the Economic Analysis of Law (AED) is found in Adam Smith, who in 1776 published his most relevant work: “The Wealth of Nations”, focusing on the free market. In summary, the idea of laissez-fair, defended by Smith, would be socially useful because: i) competition would transform selfinterested behavior; ii) the Invisible Hand would ensure that society remains on track, since those who own the means of production would only produce exclusively those goods and services that society needs. His work came to be challenged along with the theories of Karl Marx and John Maynard Keynes, who defended state intervention.

2 ECONOMIC ANALYSIS OF LAW

Machine Translated by Google 46

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CALIENDO, Paul. Tax Law and Economic Analysis of Law. Rio de Janeiro:Elsevier, 2009. p. 14. CARVALHO, Cristiano de & MATTOS, Ely José de. Economic Analysis of Tax Law and Collision of Principles: a concrete case.

2.1.1.1 Economic Approaches to Law

Excessively protective legislation in private companies encouraged other forms of labor hiring. This change, instead of contributing to greater worker security, came to limit the domain and scope of formal long-term contracts (revenue contracts), which ultimately contribute to the increase in workers' social and professional instability. Be careful with the fact that the norm can be expansionary (when it meets society's purposes) or restrictive, when it harms society's well-being. In these cases, a prior assessment of the effectiveness, efficiency and effectiveness of the standards is important, in order to safeguard possible social or economic damages resulting from the application of the standard. As such, the analytical process of legal norms must take into account a set of postulates based on guaranteeing their effectiveness, efficiency and effectiveness.

The study of law is concerned with the logically correct normative meaning that must correspond to the verbal statement of the norm, investigating the meaning of the precepts that present themselves as a determining order of conduct, establishing their logical-formal meaning and ordering them in a system logical without contradictions - the legal order, which refers to the plane of what should be. The economic Order concerns the world of real events, the distribution of effective power over goods and services and the way in which they are used (Weber, 1964:251). There are basically two orders of applicability of the economic analysis of law: the positive (or descriptive) and the normative. The regulations emanate a set of regulatory aspects and the positive perspective concerns predictions and explanations relating to social behavior in relation to a given legal norm. Economic analysis of law assumes that resources should be allocated to those individuals most willing and able to pay a certain price for them, under market conditions of perfect competition. When resources are allocated to their most valuable uses, it is said that there was an efficient allocation, as the resources were given the purpose that generated the greatest wealth (defined in terms of utility).

The measure of efficiency is provided by the Pareto Theorem: an allocation of resources is efficient if no economic agent can be in a better position without making other agents worse off. In view of the difficulties in applying the theorem, other concepts were developed, such as the Kaldor-Hicks Theorem, according to which the beneficiaries of a given allocation of goods must compensate the losers. We know how difficult it is for economists to accept that Law has a complementary and important role in relation to the economic environment, as well as for jurists to approve the use of economic tools as a guide for normative production and its application. The discipline of economic analysis of Law consists, in general terms, of the analysis of the legal phenomenon and its institutions from an economic perspective, that is, it deals with the application of elements of economic theory in understanding the function of Law, as well as the process of formulation of legal norms46 At this juncture, three factors must be considered in the economic analysis applied in Law:

Berkeley: Berkeley Program in Law and Economics. Available at: http://www.escholarship.org/uc/item/5sb875z8

Economic Analysis of Law, which in English is known as Law and Economics, is, therefore, the philosophical movement that aims to analyze, based on economic rationalism, human behavior resulting from a legal norm (be it general and abstract, be it individual and concrete). Through generalization, we seek to identify the possible consequences of a norm, which does not always occur when it is understood traditionally, either because it is done seeking the solution of a specific case, or else, because generally, doctrinal texts are concerned with with what the norm says, but not with what the recipient of the norm intends to do because of it. The Economic Analysis of Law, therefore, brings to the legal world criteria for the identification and consequent prediction of what conduct will be taken by the recipient of the norm, considering, therefore, what the implications are in the short, medium and long term in terms rationally economic. It is through the generalization inherent to this philosophical movement that it can be seen that norms (both general and abstract, as well as concrete and individual) present externalities. In this sense, Cristiano Carvalho and Ely José de Mattos47 teach, stating that:

2.1.1 Premises of Economic Analysis of Law

“as positive law prescribes conduct and (de)limits the radius of these choices, at the same time that this normative production itself is also carried out by individuals who choose, and the rights in question are scarce, nothing more appropriate than Economic Analysis to describe the legal phenomenon and prescribe how it can be more efficient”.

Machine Translated by Google PACHECO, Pedro Mercado. The Economic Analysis of Law – a theoretical reconstruction. Madrid: Center for Constitutional Studies, 1994. p. 27.

CARVALHO, Cristiano de & MATTOS, Ely José de. Economic Analysis of Tax Law and Collision of Principles: a concrete case.

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49 Berkeley: Berkeley Program in Law and Economics. Available at: http://www.escholarship.org/uc/item/5sb875z8

The Economic Analysis of Law, therefore, brings to the legal world criteria for the identification and consequent prediction of what conduct will be taken by the recipient of the norm, considering him, therefore, as a person of flesh and blood, since his actions are rationally economic. It is through the generalization inherent to this philosophical movement that it can be seen that norms (both general and abstract, as well as concrete and individual) present externalities. In this sense, Cristiano Carvalho and Ely José de Mattos48 teach, stating that:

Economic analysis can be viewed in different quadrants from this cost-benefit structure; transaction cost analysis, principal-agent relationship, the idea of expectations, externalities, opportunity and waste costs, returns on investment, etc. Some traditional institutes and categories of law now rarefied seek new meaning or new strength by re-establishing contact with other areas of knowledge, from which they had been moving away since the positivist journey that began in the 19th century. The study on Public Administration seeks to understand and evaluate the law in the normative field and establish relations within a society, in order to assess the impact resulting from its postulates. As such, within the framework of the conception, formulation and analysis of the norm, it is necessary to resort to different interdisciplinary paradigms.

“…as positive law prescribes conduct and (de)limits the radius of these choices, at the same time that this normative production itself is also carried out by individuals who choose, and the rights in question are scarce, nothing more appropriate than Analysis Economic to describe the legal phenomenon and prescribe how it can be more efficient”.

The fact that they can be applied means that such standards have applicability, that is, legal effectiveness. With this, it is stated that the expression effectiveness is translated as legal effectiveness, as applicability meeting the recommended purposes. It is in this context, too, that the Economic Analysis of Law begins to be discussed and considered, whose purpose is precisely to introduce a methodology

The search for the effectiveness of norms, that is, the conformity of the world of duty with the world of being is an essential requirement for the legal system as a whole to obtain social validity. The feasibility of normative precepts must be an incessant search for legislators, since norms must seek their maximum effectiveness. This point will be structured in order to facilitate the understanding of what is considered the effectiveness of the norms. To do so, firstly, some concepts of effectiveness will be presented, followed by a small discussion of their importance for the validity of the legal system. In a second moment, one of the faces of the problem of effectiveness, or the lack thereof, for legal norms will be presented. Next, the principle of maximum effectiveness will be briefly considered.

that contributes significantly to the understanding of social phenomena and that assists in rational legal decision-making. The economic analysis of the legal phenomenon, based on the premise that, when faced with more than one option of action, or more than one possible conduct, man, as an economically rational being, will inevitably analyze the cost-benefit relationship between the possible options, to choose what best suits your interests. However, the modern economic analysis of Law was inaugurated by the work of Ronald Coase entitled “The Problem of Social Cost” which, when dealing with the application of the cost-benefit theory in legal decision-making, as a way of obtaining greater efficiency in the solution conflicts, brought to Law the possibility of directly applying the principles of microeconomics49.

2.1.1.2 Contribution of Economic Analysis of Law

In this sense, combating the fragmentation of legal knowledge involves a dogmatic scientific ideological opening towards a pluralist analytical character. It means that the normative process must obey a scalar chain of analysis in which the legal precept is seen in a compendium in which all the assumptions of prior analysis are ensured: analysis of conditioning factors and analysis of determinants). Formulating standards meets a set of assumptions related to the scope of their applicability: the dimension of suitability (Effectiveness), adaptability (Impact) and practicality (Effectiveness). In this context, it is essential to methodically consider the prognostic picture. Ultimately, an attempt is made to develop a plural analytical base based on the economic analysis of law that can introduce tools for the analysis and evaluation of legal norms in a prior and successive premise so that it does not harm social and institutional harmony within public administration .

Machine Translated by Google and economists, when using the expression Economic Analysis of Law, commonly refers to the application of economic methods – from microeconomics in particular – to legal issues. It follows from this foundation the reason for the prior expertise of legal instruments taking into account their object but also considering the economic, social and political costs for both the agents and the State.

The efficiency of the normative choice or decision stems from its quality or impact on society.

2.1.2.1 Effectiveness of the Legal Standard

It is also an object of concern for scholars of the interaction between Law and Economics, as the efficiency of decisions taken within the scope of Law is reflected in the better or worse allocation of available resources, given the systemic nature that the legal system creates in the functionality of the economy. Economic Analysis of Law seeks to answer two questions: How is the behavior of individuals and institutions affected by legal standards and in terms of rigorously defined social welfare measures, what are the best standards and how can different standards be compared? legal norms. Science proposes to answer for the mysteries of life, which in the Middle Ages was a "mystery of faith". The power of intellectuals and scientists emerges in modernity when science gains a preponderant status in the political life of society, enormously influencing people's behavior.

KELSEN, Hans. (2005) General theory of law and the state. 4th ed. Sao Paulo: Martins Fontes,.

Effective is the right capable of being observed and achieving its ends. Efficiency draws attention to the need for legal norms to provide positive results in society and as such, the prior and successive analytical component of the norm: the process of conception, formulation, screening and the implications of the legal norm for effective public administration. Efficacy refers to the standard's ability to produce effects. The concept of effectiveness can have two meanings. The first, studied by the Theory of Law, is effectiveness as applicability and obedience to the norm, that is, it analyzes whether legal norms are being effectively applied and obeyed to say that the law is effective. Kelsen (2005)50 differentiates between effectiveness and validity: the second refers to the obligation of the norm, that is, to a characteristic that makes the legal norm something that must be obeyed; the first refers to the fact that the legal norm is effectively obeyed. In short, “validity is a quality of law; the so-called effectiveness is a quality of the effective conduct of men and not, as the linguistic usage seems to suggest, of the Law itself”.

KELSEN, Hans. (1998) Pure Theory of Law. MACHADO, João Baptista (trans.). 6. ed. Sao Paulo: Martins Fontes,.

The breadth of applicability and application of a norm is measured by its legal effectiveness and effectiveness: effectiveness in terms of its actual compliance and efficiency in terms of achieving its goals. It so happens that a rule in force, legally effective, can be effective and not achieve its purposes. Or it can be relatively ineffective - not really applied, yet complied with - and achieve its intended purpose. It is not just a question of the validity of the rule, but also, and above all, the "capacity of the report of a norm to give it conditions of action" [ alone or in conjunction with other norms. Legal effectiveness is related, for Hans Kelsen (1998)51, to the validity of the norm, because “effectiveness is a condition in the sense that a legal order as a whole and a singular legal norm are no longer considered valid when cease to be effective”. Thus, for a norm to be effective it must have validity, which is “the answer to the question of why the norms of this legal order must be observed and applied.

Efficacy is related to the production of effects.

The first dimension refers to what would traditionally be called social effectiveness, that is, whether the norm has actually been observed by its addressees. This is noticeable when the individuals or legal entities to which the norm is intended generally comply with the normative precept.

2.1.2 Criterion of Economic Analysis of Law

By effectiveness it refers to the standard achieving the purposes for which it is intended. A norm is always created as a function of a certain purpose to be achieved directly or indirectly. These purposes, with the validity and social application of the norm (the first dimension of effectiveness), may or may not be achieved – and, if achieved, this may occur to varying degrees. It is understood that this achievement of purposes, of its specific objectives, can also be called normative effectiveness

2.1.2.2 Efficiency of the Legal Standard

Economic analysis, as a method of analyzing legal norms, emphasizes the use of stylized models of individual behavior, recognizing that economic agents react to incentives (a) In describing behavior, economic analysis places great emphasis on the fact that agents they are rational and that their decisions/actions have consequences; and (b) In the normative perspective, the measure of social well-being used is explicit. Most jurists

The issue of the impact and effects resulting from a given standard is also addressed.

19 51 50

Machine Translated by Google KELSEN, Hans. Pure theory of Law. São Paulo, Martins Fontes, 1999

20 53 Ob Cit Calsing, Renata de Assis. (2012) page 291 52

It implies that the law must adapt to changes and be adjusted so that it is considered relevant to the national objectives of promoting justice, peace and development.

If the legal effect intended by the rule is unrealizable, there is no possible effectiveness. Effectiveness is the practical and concrete action of the norm, making the values determined by the law's duty-to-be prevail in the world of facts. In this way, the values and principles contained in the norms are a reality in society, since the objectives of the norms are achieved. A

The OECD (1995) suggests that impact analyzes be carried out using analytical, flexible and consistent methods, that is, supported by robust methodologies in order to assist the decision-making process of public policies. The legal world does not matter in a field of factual causality, but in an order of validity, which is the plane of what it should be52. However, the legal norms, even being in the ideal plane, refer to a concrete fact, generating a consequence in the real plane. In this way, the norm is something abstract as it dictates hypotheses, but it starts to affect effectively when its factual support materializes. Law is inseparable from an analysis of values and social facts, which transmits to norms the dominant idea of and in the group of people or countries that produce the norm. It happens that, sometimes, these norms do not correspond to the values of the entire society, leaving social desires and legal regulations in separate environments. (Calsing, 2012) 53.

2.1.2.3 Effectiveness of the Legal Standard

Effectiveness is the “real activity, the true result”, the coincidence of what is desired by the norms with the events in the world of facts. Effectiveness makes feasible what the norms proposed intellectually. The effectiveness of the legal norm implies ensuring full justice, taking into account the resulting effects of the norm in society.

The effectiveness of a standard is its acceptance by the community and its continued and actual use. The effectiveness, or as some authors call it, the social effectiveness of norms, is the effective compliance with the Law by society, which recognizes the norms and complies with them, thus implementing its commands, making its precepts effectively affect life Social. Effectiveness refers to the application or execution of the legal norm, the normative rule as human conduct. The effective norm incorporated into society's way of being, transfiguring itself into an act. “The rule of law must therefore be formally valid and socially effective”. Effectiveness means, therefore, the realization of Law, the concrete performance of its social function.

The establishment of operational systems that evaluate the real conditions of application of standards should allow a drastic reduction in the number of instruments that are out of adjustment with reality or context. The objective is to evaluate the degree of interdependence of variation in the context of application of standards, which leads to the need for standards and assumptions for the effectiveness of the standard. The concept of normative relevance is born as the analytical basis based on a set of material or immaterial constraints inherent to the efficiency of norms (justice). The relevance of the norm can be configured as a principle of validity of the norm, as it is embodied as the main requirement for the efficiency of the legal norm. The law may exist but its application does not adjust to the reality of the moment, leading to it contributing to the restriction or limitation of progress and prosperity.

The search for the effectiveness of norms, that is, the conformity of the world of duty with the world of being, is an essential requirement for the legal system as a whole to obtain social validity. The feasibility of normative precepts must be an incessant search by legislators, since norms must seek their maximum effectiveness. This point will be structured in order to facilitate the understanding of what is considered the effectiveness of the norms. To this end, first, some concepts of effectiveness will be presented, followed by a short discussion of their importance for the validity of the legal system. In a second moment, one of the faces of the problem of effectiveness, or the lack thereof, for legal norms will be presented. The effectiveness of norms depends, firstly, on their legal effectiveness, on their formal ability to affect and govern life situations, operating the effects that are inherent to them.

Machine Translated by Google Aguiar, Márcio (2016). Justice and science: the importance of Jurimetry. http://justificando.com/2016/02/16/justica-e-ciencia-a importance-of-jurimetry/

Civil Code is made through a study of its grammatical, historical, systematic or teleological meaning, the study of the universe of judgments handed down by the courts based on this standard requires

2.2.1 Jurimetry - Legal Statistics

Legal statistics is a tool to support legal and judicial decisions based on evidence (facts), seeking on the one hand to describe the characteristic essence of the facts, with the support of descriptive statistics and on the other hand, to make the inference or generalization of the facts with based on a deductive methodology, which ends up being the postulate based on Law. The legal norm by nature is general, abstract, referring to a series of undefined cases and not to concrete cases. The law only moves before a concrete fact, through the action of the person applying the law who is the intermediary between the norm and the facts of life.

Jurimetry is defined as the application of statistics and probability methods to the study and elucidation of legal phenomena. While the classical way of studying Law is concerned with identifying the possible meanings of general and abstract norms (such as those found in norms), the purpose of Jurimetrics is to evaluate how Law manifests itself concretely in countless sentences, rulings, contracts, facts and legal acts produced daily in society. It seeks to materially demonstrate the dominance of the legal world through statistical data and probabilistic analyzes vs. the predictability of phenomena. Decisions about making productive investment depend on forecasts about future profits and how reliable these forecasts or expectations are. The level of trust, in turn, depends on the availability of good information and a transparent and stable legal system.

Legal research provides data on people's level of satisfaction with justice in terms of the rules and decisions that affect them (eg duration of proceedings, amounts paid, reliability of processes and procedures, duration of legal proceedings , and damages arising from the misapplication of the law in corporate life, etc.). For Aguiar (2016), as an instrument at the service of law enforcement institutions, Jurimetrics wants to meet society's aspirations for justice. Legal models, associated with statistical concepts and techniques in the construction of solid, predictive information, help to understand the challenges in terms of legal analysis (whether diagnosis or prognosis). and even for the definition of public policies and the participation of society in the conception of legislative proposals (lege ferenda). Jurimetrics proposes to allow a broad and direct approach for anyone interested in using quantitative tools in law. A connection is made between the institutes of law and statistics, in order to make the application of quantitative methods to legal issues immediate. Statistics began to take on a relevant field in the study of legal phenomena, seeking to highlight facts so that the Public Power can identify acts, in cases of hyper-regulation (excessive standards for irrelevant cases) and hyporegulation2.2.1.1 Normative Jurimetry (Legal Acts)

The study of Law is dedicated to the attempt to develop and understand general and abstract principles of conduct with a view to finding paths that lead such principles to their materialization, in the form of laws, doctrine and jurisprudence. It becomes increasingly imperative that the science of Law communicates with other sciences – Interdisciplinarity, as a consecrating premise of the pluralism that guides the contemporary legal world. Law is the sense of supposed and expected rationality and social conduct. Mathematics is the common sense of the exact rule. The classic method of studying Law is based on the analysis of legal norms. However, such a study should not be restricted to this interdisciplinary analysis, for the deepening and knowledge of the facts and acts. As important as studying the legal concept is to understand what are the characteristics of the facts. The methodology for studying these characteristics is given by Statistics, which allows interpreting and modeling data, clarifying how a given population behaves.

(absence of rules for relevant cases).

As exemplified by Nunes (2011)55, the analysis of the norm that regulates the obligation to indemnify the

As maintained by Aguiar (2016)54. The use of statistical methods for the study of Law gave rise to a discipline called Jurimetrics, whose main objective is to summarize and understand legal processes through the application of statistical models. Jurimetry is the application of quantitative methods, especially Statistics, in Law. From the perspective of the legislator and public manager, Jurimetrics has the role of supporting decision-making by formalizing the principles used. Assessments must be replicable, giving preference to public data, in order to make the study accessible to all citizens who wish to better understand legal mechanisms.

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Nunes, Marcelo Guedes (2011). Jurimetry. President of the Brazilian Association of Jurimetry (ABJ), lawyer. http://abjur.org.br/o-que-e-jurimetria.php

2.2 Methodology of Economic Analysis of Law

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Machine Translated by Google LOEVINGER, Lee. Jurimetrics: The Next Step Forward. Heidi Online, 1949.

Today, the normative quality is discussed, however, the influence of law in the flexibility of Public Administration is put aside. The excess of legalism, for centuries, has made the public service static, and the current reality requires innovative solutions and with the administration living in a closed and dogmatic world, it is unable to face the dynamics and effects resulting from the current national situation and international influences such as technological advances. , globalization and neodominant geopolitical strategies. The methodology for studying these characteristics is given by Statistics, which allows interpreting and modeling data, clarifying how a given population behaves.

As Menezes maintains that jurimetry converges Law and Statistics (as a science), under the umbrella of measuring the social facts that gave rise to conflicts and, thus, anticipating hypotheses and projecting behaviors in the elaboration of laws, in the establishment of public policies , in the management strategies of the collection in a Judicial Court, in the rationalization of decisions in search of their greater effectiveness since the concreteness of the right is given in function of the decision that recognizes it.

2.2.1.2 Positive Jurimetry (Legal Facts)

While the classical way of studying Law is concerned with identifying the possible meanings of general and abstract norms (such as those found in norms), the purpose of Jurimetrics is to evaluate how Law manifests itself concretely in countless sentences, rulings, contracts, facts and legal acts produced daily in society. The eclectic profile of legal realism (which appealed to economics, sociology, psychological theory, anthropology, linguistics) enabled the emergence of a new profile of the study of law. One of the recent phenomena of law (seen as a science) is the break with hermetic disciplinary formalism and the introduction of new perspectives for the analysis of legal facts (in a broad sense). The idea is to measure the facts related to conflicts, to anticipate scenarios and plan conduct in the practice of law, in the drafting of laws and in Judicial management based on probabilities and regressive analyses. Quantitative methods have been used for centuries to solve practical problems in the most diverse areas: economics uses such techniques to evaluate its theoretical models in a sub-area known as econometrics; Biology found in biostatistics a way to process its immense volumes of data and deal with the uncertainties inherent in the study of living beings. The law, despite having uncertainty at the heart of its application, does not use quantitative methods in a formal way in its day-to-day activities, even though this association has been around for a long time. Holmes Jr. (2009, p. 9)56 states that

Jurimetrics is widespread as the scientific method for analyzing facts and acts arising from decisions in the different areas of legal action (legislative), judicial action and executive action. In any of these fields, analysis is essential before making a decision, and in the same way, it is important to evaluate decisions taking into account their implications for the future. Approving a law may seem easy, even after the Legal procedures have been completed, however, this prior diagnostic assessment (ex-ante) must be followed by a successive prognostic assessment (ex-post). Jurimetria applies qualitative and quantitative inductive analyzes in the legal context and provides the basis for strategic decision-making. Consists of surveying legal documents such as: Judgments and Judgments throughout the national territory about a given case to assess jurisprudential trends

MENEZES, Daniel Francisco Nagao (2015). JURISDICTION AS AN AUTONOMOUS RESEARCH METHOD

“the man of the future is the man of statistics and the master of economics”, Holmes points out the need to develop quantitative thinking.

models capable of understanding their multiplicity and, at the same time, summarizing their variability and suitability, allowing the elaboration of probability calculations regarding the behavior of the courts. By understanding Law "from bottom to top", starting from the concrete plan to reach the abstraction of the norm, jurimetrics brings important elements to be considered in the elaboration of public policies, which, in democracies, often involve legislative activity The application of Statistics to Law, although not very widespread, is important in the field of analysis and evaluation of the application of Law in society.

HOLMES JR, Oliver Wendell. The path of the law. [SL]: The Floating Press, 2009

Loevinger (1948)57 coined the term 'jurimetrics', which for the first time united legal theory, computational methods and statistics, with the aim of analyzing jurisprudence and making the use of law more predictable. From the statistical organization of judicial decisions (qualitative element), and also from the topics covered in the processes (quantitative element) it is possible to obtain decision-making parameters (Menezes, 2015))58. Statistics serve as an important source of factuality, as they provide evidence about the real conduct of individuals and what decisions should be made as a result of data analysis. As such, it should be seen as a source of Legistics.

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Machine Translated by Google Based on the normative diagnosis, jurimetry, by describing the concrete interests of legal agents, their conflicts and the solutions offered by the judges, can help the law to better understand what citizens expect from the authorities and, thus, help the authorities to elaborate laws. more adherent to social reality. By describing the concrete life of law, jurimetry becomes a fundamental tool to develop fairer legal institutions capable of realizing the political aspirations of society. The quality of decisions handed down in court are and will always be guiding compasses for human coexistence, social pacification and cultural, social and economic development. Scholars dedicate themselves to theses on the applicability of a norm in judgments and the decision-making profile of a given judge or the probability of non-compliance with the nature of the norm. Behind the course is a mathematical-statistical conception of the traditional study of law, which theoretically and conceptually discusses abstract laws and principles. After testing the decisions, errors of omission or applicability can be detected in some cases.

The legal inference is a tool to help measure the reasonableness of the decision or rule. It follows from this foundation the fact that not all legal or judicial decisions are fair and as such it is necessary to assess the reason for the decision, with recourse to a specific case. The testability of the decisions is important insofar as the norms are generic (deductive), saying reason for the generalist and abstract domain of application. – Normative or decisional justice: Involves Hypothesis Testing, Significance, Null Hypothesis/Alternative Hypothesis. Legal inference is a laboratory that seeks to measure suitability, risks and uncertainties and identify countermeasures before the decision, based on a case or isolated cases to third parties due to the occurrence of commissive or omissive behavior, material or legal, legal or illegal, attributable to public agents. Legal inference draws attention to the need to segment a set of cases for the testability of the rule before its entry into force. It starts from the principle that the norm is likely to cause damage in its practical application and as such, it must be tested before putting it into force.

For Nunes (2011)59, the traditional study of law travels on a theoretical, general and abstract level. Jurimetry proposes to serve as a tool for understanding this universe of processes and legal facts. Unlike abstract norms, legal processes and facts arise in numerous populations, which are replicated around common elementary structures, with each individual, however, displaying its own characteristics. When we study a single general and abstract norm, for example an article of law, there are appropriate tools for its description, such as history, grammar or logic. The study of populations, on the other hand, demands the use of other areas of knowledge capable of briefly describing their central tendencies and variability: statistics and probability.

2.2.1.4 Analytical Jurimetrics (Analytical Logic)

NUNES, Marcelo Guedes (2011). What is Jurimetry?

Based on normative prognosis, analytical jurimetry is an intelligence tool oriented towards the rationality of the decision-making process. Analytical jurimetry models are based on the deduction of current factors to admit probabilities or possibilities of present or future factors based on one or different scenarios. It is based on the coherence of the analysis instruments so that they produce results close to reality. In the legal field, the coherence of decisions is important so that similar cases can be judged with the adoption of the same principles as in case law. Analytical jurimetry is a posture that defends an argumentative basis based on evidence or even foundations substantiated by a support base. An important fact is that logical reasoning is not based only on known factors, but also extrapolates from an unknown reality to deduce unknown facts in terms of possibility or probability.

2.2.1.3 Descriptive Jurimetrics (Legal Statistics)

Analytical jurimetry is usual for, based on events, future vectors can be extrapolated. Analytical jurimetry serves as a basis for caution and weighting of decisions so that they have a logical, coherent and convincing support for a right decision. It is also important to take into account that analytical jurimetry is a tool that helps in the design of problems, assuming different combinations of factors (explicit and implicit causation), with which future extrapolations are based. Inference is a process by which, through a given sample data, a general conclusion is reached. Other synonyms of inference are conclusion, implication, conclusion and consequence. Inference consists of procedures for making generalizations about the characteristics of a population from the information contained in the sample. The sample contains the elements that can be observed and is where the quantities of interest can be measured.

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Machine Translated by Google In general, it proposes public management with the following characteristics: a) strategic or result-oriented nature of the decision-making process; b) decentralization; c) flexibility; d) increasing performance and pay for performance/productivity; e) internal and external competitiveness; f) strategic direction; g) transparency and collection of results (accountability); h) differentiated patterns of delegation and decision-making discretion; i) separation of policy from its management; j) development of managerial skills; k) outsourcing; l) limitation of the stability of servers and temporary employment regimes; in) differentiated structures. (Holmes & Shand, 1995; Hood & Jackson, 1991). 61 24

60 New Public Management (NGP) is a set of arguments and administrative philosophies accepted in certain contexts and proposed as a new paradigm of public management following the emergence of the themes of crisis and State reform in the 1980s (Hood & Jackson, 1991).

2.2.2.1 Conceptual framework

The regulatory impact assessment (Regulatory Impact Assessment) is today an indispensable technical tool for the normative process, to support decision-making, and is a factor that promotes the improvement of the quality of legislation, transparency and the legitimization of political power. Jacobs (2006) recognizes the important role of the AIN as an instrument that assists governments in examining and measuring impacts on the costs and benefits of a proposed regulation (ex ante) or an existing regulation (ex post). However, for the author, the AIN is more than an analytical method for measuring impacts, and should be understood as an open process that expands the debate and contributes to the choice of public policies by the agents involved.

Ensuring the quality of democracy passes, in a decisive way, through ensuring the quality and clarity of the regulations emanating from the State. The drafting of legislation is an essential tool of policy instruments that governments can use to achieve their objectives, and it is essential to good public management60 that it be implemented as efficiently and effectively as possible - as there are limits to the absorption and effectiveness application of legislation by society. All legislation has costs and benefits, so its inadequate implementation can cause obstacles to citizens and companies, create the perception of a negative environment and even stifle economic growth. It is a tool to aid in the process of designing, monitoring and evaluating standards, anticipating the impact of social and economic changes.

The excess of generalism may have dictated the failure of law to adapt itself over time. of the effects that, directly and indirectly, they produce on social life and economic relations, imposes on the legislator the duty to guarantee their quality, rationality and efficiency. Regulatory impact assessment today constitutes an indispensable technical tool for the regulatory process, supporting decisions regarding the relevance and suitability of standards. Normative impact assessment is a methodology that aims to support the reasoned choice of legislative policies. There are advantages to preparing an impact assessment mainly in the case of propositions that impose relevant benefits or costs for the economic agents involved or that promote major changes in the distribution of society's resources. For Meneguin 61 There are several reasons for integrating legislative assessment into the process of drafting a rule. One of them is the possibility of framing rational and scientific processes to legal production. In the view of KirkPatrick, Parker, 2007, they maintain that:

After defining the objectives, the next phase of preparing the AIN is to establish alternative propositions that can achieve the same objectives. Considering a wide range of propositions forces the AIN author to think "outside the box", and also provides greater transparency to the process. It makes it possible to demonstrate to Standard Makers and interested parties that alternative propositions have been seriously considered, and to explain why they have not been adopted. This makes it easier for rule makers and society in general to understand the logic behind choosing the best proposition and avoids unnecessary discussions about alternatives that do not contribute to achieving the same objectives. Alternative propositions must be closely linked to both the causes of the problem as well as the objectives. An AIN should contain a risk assessment when addressing a problem.

Fernando B. Meneguin (2010) Legislative impact assessment in Brazil. Brasilia

The potentially damaging effects on economic growth resulting from excessive government regulation have attracted increasing attention from policy-makers in recent years. Starting with the Reagan administration in the USA and followed by Thatcher government in the UK, a rapidly growing number of governments around the world have adopted measures to improve the quality of both existing regulations and proposals for new regulations.”

2.2.2 Normative Impact Analysis

(KIRKPATRICK and PARKER, 2007, p.1).

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2.2.2.2 Cost-Effectiveness Analysis

Norms are established in the virtuous practices of society and with care not to repeat what was unsuccessful. Therefore, it is said that there is nothing worse than being disrespected. If this occurs, the failure of the corrupting power to exercise becomes clear. On the other hand, when it comes to the State, everything is valid, from the violation of norms and customs and everything else that is necessary to achieve the intended consequences: the ends justify the means. The expected impact of the norm and its effects/implications on agents must be predicted. A standard with high transaction costs, it can be expected that its effectiveness will be reduced. An economic feasibility study is an ex-ante strategy that shows the viability of the project before its implementation. It is based on this analysis that the Bank guarantees the credit for the investment.

The cost-effectiveness analysis establishes a comparison of costs between regulations that generate similar benefits, identifying which means are less costly to reach certain goals to be achieved. It can be used in cases where the monetization of regulatory benefits cannot be obtained (and is therefore complementary to the cost-benefit analysis). Cost-effectiveness analysis (ACE) is defined by OMB (1992, p. 17), as: “A systematic quantitative method for comparing the costs of alternative means of achieving the same stream of benefits or a given objective”. ACE, therefore, is understood as a systematic method of comparing costs through alternative options to achieve the same flow of benefits or a given objective. The OMB points out that ACE constitutes an analysis tool that provides a solid basis for choosing alternatives, with a view to identifying policy options that generate greater benefits.

For Jacobs, the Cost-Effectiveness Analysis (CEA) can be understood as a comparative method of the costs of regulations that have similarities in terms of benefits. It is considered a useful and at the same time limited method, as it does not analyze whether the benefits justify the costs, but helps governments in comparing possible options. Jacobs (2006, p.33) observes that governments have sought more appropriate methods, that is, reliable, transparent and less costly to public coffers. The author points out: “The importance of the policy issues at stake is a strong reason to use methods that are robust, flexible and well-proven to work in a wide variety of public policy areas”. The referred author points out some main analytical methods: i) cost-benefit; ii) cost-effectiveness; iii) partial analyses; iv) risk analysis; v) uncertainty analyses. (Jacobs, 2007)

From these data, it is possible to verify if the analyzed norm completely equates the addressed problems, if it needs to be complemented, or corrected, identifying the cases of constitutional, legal, legal or regimental, technical, financial or budgetary unfeasibility of the analyzed proposition . The Economic and Financial Feasibility Study (EVEF) aims to help evaluate the investment plan to be carried out, demonstrating the viability or unfeasibility of the project. One way of calculating the investment is to create a specific account for each project, from which all payments and expenses incurred would come out. It is the document through which the forecast structure of costs and income (cost-benefit) is made, taking into account opportunities and minimizing risks and uncertainties.

As an alternative tool, and which proves to be the most appropriate until expertise in CBA is acquired, there is the cost-effectiveness analysis. This analysis consists of comparing the costs between regulations that generate the same or similar benefits. Unlike the CBA, the tool is not applied to determine which goals must be achieved, but, once determined, it is consistent in comparing which means are less costly to achieve them (Salgado and Borges, 2010)62. Furthermore, the material consonance between legal norms should not only be seen as a direct correlation between isolated norms, but also as a correlation of one or more norms with the legal system as a whole. With this, the problem of material validity becomes not only a vertical, hierarchical one, but also a horizontal evaluative problem.

problem where there is a possibility (risk) of serious negative outcomes. If these outcomes may involve irreversible damage or fatalities on an unpredictable scale, a formal risk assessment should be carried out by specialized personnel. Standard makers are often faced with the need to reduce or eliminate the risk of adverse effects on society and the State itself. When the standard or proposition under analysis is likely to produce different results, the AIN must include a risk assessment as a tool to determine the best policy to be adopted.

2.2.2.3 Financial Analysis of the Legal Standard

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3.1.1 Fundamentals of Jurieconomics

Jurieconomics is the science dedicated to the analysis, follow-up, measurements and recording of legal phenomena and their impact on the changes that occur in society in general, throughout its period of validity, from the approval based on the assumptions of the economy and analytical intelligence.

In today's world, law has great influences in different sectors and dimensions. The apparent supremacy of the law has been consecrating the fullness of the law in the different areas of action and performance, however the limits and damages of the law are rarely considered in the social or corporate sphere. Jurieconomics is seen as a revolutionizer of legal dogmatics towards a state of legal efficiency in the different fields of action and performance, aiming at the consecration of normative justice. The limitations of the law result, on the one hand, from the methodological limitation of the law to assess its postulates, and on the other hand from the irrelevance given to analytical techniques for prior determination of the factuality of the legal world in the consecration of social justice.

There is a growing trend in the legal sphere of emancipation through the legitimation of facts through the norm, even if these do not contribute to the justice of law. Jurieconomics invites operators of law and economics to be guided by a normative ideology that does not jeopardize the natural rights of a society. On the one hand, there is growing recognition of the need to bring law closer to social reality, or the effective application of legal science to satisfy the needs of the collective – Justice. However, on the other hand, the limitations of the law in the consecration of justice are also recognized, which implies that not all legal acts and facts permeate Justice.

Jurieconomics, by describing the concrete interests of legal agents, their conflicts and the solutions offered by judges, can help the law to better understand what citizens expect from the authorities and, thus, help the authorities to elaborate laws that are more adhering to social reality. . Every decision requires an analysis of its implications in the short, medium and long term, as the decision itself can be meritorious and yet the impact can be disastrous – the predictive and probabilistic nature of the actions of law operators. Jurieeconomic research seeks to analyze people's level of satisfaction with justice in terms of the norms and decisions that affect them (eg duration of proceedings, amounts paid, reliability of processes and procedures, length of time for judicial proceedings, and damages resulting from the poor application of law in corporate life, etc.). For Aguiar (2016), as an instrument at the service of law enforcement institutions, Jurimetry wants to meet society's aspirations for justice. Jurieeconomic models, associated with intelligence in the construction of predictive information, help to understand the challenges in terms of legal analysis (whether diagnostic or prognostic) and even for the definition and participation of society in the conception of legislative proposals (lege ferenda) .

The contemporary postulates of applied science tend to develop new perspectives around the measurement of science of the norms that govern science as well as the interconnection between the different vectors of disciplinary knowledge. Scientometrics appears as the science of science, that is, the deductive science to study the progress of science in different branches of knowledge. This trend in scientific development has sought to develop theses around explanatory models based on the combination of “nomic” postulates that guide scientific doctrine. With interdisciplinarity, the combination of different sciences is increasingly common. This is how interdisciplinarity arises to remedy the limitations of the analytical domain of law and present new conjugative proposals in the scientific sphere and the instrumentalization of legal science using different economic methods and techniques, so that legal and judicial decisions are and are increasingly closer to normative optimization – Justice.

3 JURIECONOMICS AND NORMATIVE LEGAL INTELLIGENCE

This is how the combination between Law and economic methodology arises for the study and analysis of legal acts and facts. It seeks to enshrine the efficiency of the legal norm, that is, to optimize legal decisions, so that the legal field is assertive in terms of its principles and postulates within society. This implies saying that the legal norm should contribute to increasingly fair decisions – We are dealing with fairness in the law, that is, the Justice of the Law. In the administrative domain, there is a growing need to ensure the approximation of administrative regulation to the context and specific reality of each moment. From this purpose, Jurinomy is born as the science that proposes to regulate the normativism of law, that is, the scientific field combined between law and economics to study facts and realities where the legal norm and economic norm must guarantee social justice. Jurieconomics proposes to be the applied analytical field dedicated to measuring the domain of applicability or study efficiency of normative postulates. The foundations of Jurieconomics are based on the approach of economic, financial and phonometric models applied to the study of Law.

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The intention of strategic excellence in the corporate world is to make organizations market leaders in the present and in the future. This trend, with a strategic dimension, draws attention to the facet of suitability (external environment) and adaptability (internal environment). A first segment has to do with the combination of strategies through separate pieces that are integrated as a block in order to satisfy present and future needs, given its innovative nature –

In this way, the possible legal application of fundamental rights would be instrumentalized, in the sense that they function as a basic interpretative axis of superior values within the legal system. Adaptive competence reflects the quality of self-organization, skills, motives, interests and affections. The foundation is contextual, so prediction analytics is guided by the behavioral objectives of intelligent thinking: adaptation to the environment; the modeling of the environment according to needs and expectations; the selection of the environment as an adaptive resource. At the center, therefore, is adaptation.

Taking into account the dynamics of the external environment such as policies, competition, level of innovation, etc. (surrounding environment). Organizations are perfecting their product to satisfy the demand, giving different valences and utilities that meet the needs of the user – Adequacy. This reconstruction of legal concepts does not represent anything revolutionary, although in itself it presents advantages in relation to traditional concepts. This is, rather, a proposal of an instrumental nature, as the objectives go beyond mere conceptual reconstruction. Rather, what is sought is to think of the theory of Law in its basic categories as a normative set tending to the maximum guarantee of fundamental rights. In this context, it is essential to consider the standard taking into account the prognosis: its effectiveness, efficiency and effectiveness. In addition to analyzing effectiveness, efficiency and efficiency, the impact assessment should consider other effects produced by the legislation, including consequences unexpected by the legislator.

3.1.1.3 Normative Strategic Excellence

Within the framework of normative strategic guidance, it is important that public services are guided by meeting their Mission through a Vision and Values. First of all, if we don't know where we are and where we want to go, we can hardly have a clear direction, as all paths are useful, but none of them take us anywhere. A critical issue in normativism has to do with the devaluation of planning instruments, and as such the makers of standards are not aware of what challenges the administration will have to take on in the future. Within the framework of strategic guidance, it is important that public services are guided by meeting their Mission through a Vision and Values. First of all, if we don't know where we are and where we want to go, we can hardly have a clear direction, as all paths are useful, but none of them take us anywhere. Building the future is a visionary process (combines vision and strategies), but it is also an intelligent process - a testing instrument (recognition).

3.1.1.2 Normative Adaptability Analysis

3.1.1.1 Adequacy Analysis of normative acts

Necessary the right to observe the law not only formally, but also to observe it substantially, in its directions. Hence the claims that reasonableness / proportionality can be seen as an offshoot of legality, called substantive legality. In other words, through the principle of proportionality / reasonableness, the due process clause is currently conceived, in its substantial sense, as an axiological control mechanism for the actions of the State and its agents. That is why it constitutes a typical instrument of the Democratic State of Law, in order to prevent any illegitimate restriction of the rights of any man without a previously established process and with the possibility of wide participation. Administrative acts will only be complying with the law if they really remain within the standards of reasonableness and proportionality. If not maintained, these acts will be illegal, not

With the aim of analyzing the impact of legal norms, the economic analysis of law appears as an analytical tool in the field of effectiveness, efficiency and effectiveness of legal norms. It takes into account the fact that legal norms should guide the action of agents, however they should not be a limiting factor for their good performance. This raises the problem of the applicability and suitability of the legal norm. Having proceeded with the analysis of the problems of validity and normative validity from an alternative, guaranteeing point of view, one must move on to a related analysis, but situated on a different plane: the difference between efficacy, effectiveness and efficiency. In this way, it is possible to formulate effectiveness judgments about standards, stating them as effective or ineffective. A norm will be effective if it is effectively complied with and applied and if its purposes - individual and contextual - are predominantly achieved. A norm will be ineffective when it is not complied with and applied or when its purposes - individual and contextual - are predominantly not achieved.

Machine Translated by Google Massuanganhe, I. Jacob (2015). Applied Scientific Research and Investigation: Structural Analytical Intelligence and the Methodology of Thought

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It is the level of the power structure and the rules of its formation, that of the “material economic infrastructure”. It is determined by the functions of the State that ensure capitalist accumulation and the normalization of relations between social groups. This is what ultimately explains the conformation of the other two levels, when thought of as levels of reality, or the characteristics assumed by the relationships to be investigated, when thought of as levels of analysis. This level of analysis deals with the function of state agencies which, in advanced capitalist societies, is, in the last analysis, what ensures the process of capital accumulation and its legitimacy before society. This is what can be called the essence or structural level.

Intellectual development implies moving from a stage of thinking to more advanced levels with the application of a set of instruments, methods and principles. The modern world is constantly changing and new demands arise, tending to solve new solutions for the complexity and dynamism with which the problems get worse. Analytical intelligence is the ability to solve problems or create products that are meaningful in one or more cultural environments. Innate, general and unique ability, which allows individuals to perform, greater or lesser in any area of activity - ability to think, conceive, understand; ability to solve new problems and adapt to new situations (Massuanganhe, 2015)63 And as such, analyzes must be carried out on the domain of the applicability of norms and their implications in society using models of predictability and normative intelligence .

It should be noted that questioning whether norms achieve their specific objectives brings to light the teleological nature of any set of norms, and the norms themselves in isolation. A civil law norm, which sets criteria to distinguish stable union and concubinage, aims to protect marriage and stable union in a similar way, considering this family entity and not concubinage. An important aspect of the analysis of a norm is, therefore, the verification of whether such norm is reasonably achieving the purpose for which it was created, at least moderately, being, therefore, efficient. Such attainment of normative purposes does not mean -

nor could it mean - that the norm fully satisfies what it is intended for, but rather that its positive application - application of the norm to a legal situation - or negative - that the norm is respected so that situations that contradict it do not occur contributes to bring the law closer to this objective(s).

Normative intelligence is based on the postulates of greater scope and involvement of the population in the processes. It is the intelligence area that takes care of aspects inherent in the analysis of interventions, their impact and the participation of actors in decision-making as well as in the implementation of decisions. This trend of strategic conjugation draws attention to the facet of adaptability and suitability for followers. It has been a common tool during election periods, and is evidenced by its conception of engagement and involvement. It is a governance based on the masses, the people and the majority. Segments within society the spirit of unity, revolutionary and hope for the future. As such, the analysis of the legal norm implies an in-depth study around the predictability and anticipation of the adverse effects resulting from the application of the norm – Intelligence. This field of study implies the combination of normative theories with positive studies of the legal norm. When looking at normative intelligence, it focuses on the practical application of the imaginative capacity associated with the flow of information to analyze the structure, behaviors and trends, aiming to extract strategic action in the short, medium or long term. In the intelligence strategy, it is in the sense of investing more and more in predictive solutions. It is not interesting to dominate the past as a way of equating the present and predicting the future. It is important to combine the past and the future for today, where we will have to make decisions based on the problems that afflict us in the present. Tomorrow's problems will be dealt with tomorrow, it's just a matter of stratifying short, medium and long term priorities. The functioning of the administrative structure (institutional). It is the surface level of intra and inter agency links and networks,

3.1.2 Legal Intelligence

will be realizing the objectives of the law. Even if they formally appear to be legal, they will be illegal if they do not adhere to the principles of reasonableness and proportionality. There is also in German doctrine the expression 'prohibition of excess' which for many is synonymous with these principles. In this way, in certain situations it is possible to control administrative discretion, as in the case of implementing the norm, as long as they are specific, socially necessary and constitutionally required policies.

3.1.2.1 Normative Intelligence

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65 http://www.opiniaoadm.com.br/2011/10/afinal-de-contas-o-que-e-pensamento.html Assis, Olney Queiroz (2011). Legal anthropology manual— São Paulo : Saraiva, 2011.

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This is what can be called the appearance or superficial level. It is the level at which the interests present within the scope of the administrative structure are manifested, that is, the political groups present within it and which influence the content of the decisions taken. Given that the existing groups within an institution respond to the demands of other external groups, located in other public institutions and in private organizations, the characteristics and functioning of the same cannot be properly understood unless in terms of the power relations that manifest themselves among these groups. This is what can be called the level of interests of the actors. For Boaventura de Sousa Santos (1988:73, cited by Assis64, legal pluralism takes place whenever contradictions are condensed into the creation of social spaces, more or less segregated, within which litigation or disputes processed on the basis of appeals are generated. internal normative and institutional. These social spaces vary according to the dominant factor in their constitution (which can be socioeconomic, political or cultural) and according to the composition of the social class. Thus, despite the merit arising from the postulates of the pure theory of law, by distancing from the other facets of justice that may serve as a criterion for evaluating norms, And the introduction of values within the scope of legality does not mean “material fairness”, but the formal adequacy of a valuation Valid legal propositions in a given material scope are deduced from axioms, using a purely axiomatic-deductive method.

The problem definition must include a basic scenario for comparing solution options (alternative propositions). The purpose of the baseline, or baseline, scenario is to explain how the current situation will evolve without public intervention – it is the "no policy action" scenario. The reference scenario should also serve as a basis for comparing solution options. The baseline scenario should be solidly supported by facts and, as far as possible, expressed in quantitative terms. Also, it should be set for an appropriate time horizon (neither too long nor too short). The baseline scenario should establish a clear indication of how serious the problem is, or to what extent it would become more serious without public intervention, and whether there are irreversible consequences. When describing the reference scenario there is the challenge of uncertainty in the projections made.

3.1.2.2 Intelligence of Prediction

The intelligence of prediction is an exercise oriented towards predicting the future and centered on choosing different scenarios (paths) to reach a certain end (vision). The intelligence of prediction is aimed at projecting the future (building a long-term vision). Forecasting intelligence is oriented toward the ability to predict the future based on forecasting or forecasting models.

3.1.2.3 Anticipation Intelligence

Oriented towards the present based on future facts, it is action aimed at anticipating future phenomena. It is oriented towards the ability to bring the future into the present (today) – it implies the

projection. It is based on the equating of strategic thinking aimed at the alternative equating of solutions oriented to satisfy the needs of the present and the future. Within the framework of government reform, it is important that public leaders are guided by the facet centered on the growing appreciation of strategic action. The foundation is contextual, so the prediction analytics is guided by the behavioral objectives of intelligent thinking: adaptation to the environment; the modeling of the environment according to needs and expectations; the selection of the environment as an adaptive resource.

determined by flows of resources and authority, etc., in which the analysis is centered on the decision-making process within organizations and on the relationships between them.

preventive action in order to face possible risks, which means taking measures before the

The intelligence of prediction is oriented towards prediction in the formulation of government action, so that adequate ways can be identified to effectively achieve the intended results. Predictive intelligence is now oriented towards the long term, however actions can be deployed in the medium and short term. Two moments mark the strategic process: (i) strategic thinking, and (ii) strategic analysis. The essence of strategic thinking has been widely discussed in debates around public service efficiency and an increasingly active State. For Uberaldo Fernandes65, strategic thinking implies the ability to continually look to the future, that is, to know where one wants to be in the medium and long term, and define lines of action that guarantee the achievement of the desired results. Strategic analysis is associated with choosing the best policy alternatives. The notion of strategic analysis leads to a new challenge in the conceptual field and in the realignment of action and ways of acting in public administration: maximizing the effects of public choice while maximizing the interest of the State.

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It is not enough to have a vision or create strategies, it is also important to be sure of the surrounding environment in which the strategies will be inserted. In military science, poor battle preparation implies fatality. Ex-ante and ex -post actions derive from forecasting intelligence . Ex ante action is associated with the conditions or environment necessary for the effectiveness of the strategy. The product of ex-ante strategies gives ex-ante results. For example, if our strategy chosen from among the

This facet is oriented towards anticipating the future (from tomorrow to today). The visionary facet means knowing the future and assuming a set of critical assumptions that could compromise the future. It means identifying the risks, deviations and negative influences and taking the measure or action before the phenomenon happens. The visionary facet contributes to the establishment of objective conditions for the effectiveness of the strategies, as it induces tactics for contingency situations associated with predictable and unpredictable factors, therefore a good strategist must have a good visionary foundation. In anticipation, the visionary foundation seeks to emphasize the preventive role, contrary to the strategic facet, which assumes more of a corrective vector. The visionary leader is concerned with “what still comes”, everything that is not in the common domain.

1. study of the result of norms (study of legal output), in which analysts try to explain how expenses and services vary in different areas, which is why they take norms as dependent variables and try to understand them in terms of social factors, economic, technological and others;

3.1.3 Analytical-Decision Fundamentals

Analytical intelligence has a converging field of action insofar as it values the sphere of action based on the assumptions of empirical work associated with scientific practices. Intelligence thus gains the primacy of inducing knowledge and knowledge from critical premises associated with the combination of scientific methods and techniques. Developing structural analytical intelligence implies the equating of analytical models (abstraction) that describe the behavior and interpretation of real phenomena associated with scientific methodologies) to understand problems and present scenarios. Intelligence stems from two main foundations: (i) predictability and (ii) anticipation. It is not enough to draw up legal norms using a forensic technician, it is imperative to assess their quality. A poorly conceived norm is one that does not have an effective domain in terms of suitability and practicability, given the context and dynamics required in a modern administration.

2. evaluation study , which seeks to identify the impact that standards have on the population; information for legal making : in this case, government and academic analysts organize data to aid legal making and decision-making

It implies the ability to predict and correct future errors before they happen through a set of analytical instruments to measure the level of intended results, the impact of the rules, the effects and their implications. Legal analysis is thus characterized by its applied, socially relevant, multidisciplinary, integrative and problem-solving orientation, in addition to its descriptive and normative nature. The normative analysis is considered a determining factor for a pre-assessment of the impact (implications). It serves as a testing ground or laboratory for testing the effects of the standard. This implies that, as soon as the standards are formulated, they pass through a laboratory field for testing. This field of testing is called normative analysis. Norms have repercussions on the economy and societies, which is why any theory also needs to explain the interrelationships between the State, politics, economy and society.

phenomenon happens. Anticipation is based on the mitigation of risks and uncertainties, that is, it outlines the need to identify effective solutions, anticipate events and generate impact from public action (risk and uncertainty balanced) . In this case, it is necessary to anticipate future events and try to respond in a timely manner.

3.1.3.1 Normative Diagnostic Analysis

The reviewability of the rules is a fundamental element. Normative analysis seeks to identify possible negative or positive implications of norms within society, so that the State can take preventive and corrective measures before the phenomenon occurs. Norm analysis draws on contributions from a number of different disciplines in order to interpret the causes and consequences of the norm, in particular by turning its attention to the formulation process. He also considers that Normative Analysis is an applied sub-area, whose content cannot be determined by disciplinary boundaries, but rather by an approach that seems appropriate to the circumstances of the time and the nature of the problem. The norms analyst must be situated outside the everyday world in order to be able to ask about some of the big questions related to the role of the state in contemporary society and the distribution of power among different social groups.

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• Sensitivity Analysis: In light of this detailed risk assessment, new measures can be adopted to manage the risk. When the hazard under consideration may have consequences that are not yet fully scientifically established, and which may be irreversible, a full risk assessment by a scientific committee is necessary. Sensitivity analysis and risk assessment are tools to address these challenges associated with the description of the problem.

An economic feasibility study is an ex-ante strategy that shows the viability of the project before its implementation. It is based on this analysis that the Bank guarantees credit for the

The problem definition must include a basic scenario for comparing solution options (alternative propositions). The objective of the basic scenario, or reference scenario, is to explain how the current situation will evolve without public intervention – it is the "absence of political action" scenario. The reference scenario should also serve as a basis for comparing solution options. The baseline scenario should be solidly supported by facts and, as far as possible, expressed in quantitative terms. Also, it should be set for an appropriate time horizon (neither too long nor too short). The reference scenario must establish a clear indication of the severity of the problem, or to what extent it would become more serious, without public intervention, and whether there are irreversible consequences. When describing the reference scenario there is the challenge of uncertainty in the projections made.

investment.

As it assumes the nature of predictability, it reduces the level of risk associated with the implementation of the decision, given that it is a prognostic instrument that assists the decision-making process.

Sensitivity analysis and risk assessment are tools to address these challenges associated with the description of the problem. The Prognosis - Ex-post action (efficiency-oriented): They are linked to the implementation of the main strategies and oriented towards the efficiency of the strategy. They are also called complementary strategies, which support the main strategies. In this case, ex-ante actions serve to reinforce, highlight and support strategies that are seen from a tactical perspective. The product of ex-post strategies gives ex-post results. For example, if our chosen strategy among the several is to travel by land, throughout the journey we must have fuel (determinant). Prognostic analysis can be Predictability or Implications

• Implication Analysis: This is where all elements that may constitute factors in favor (opportunities) or against (risks) are taken into account. Implication analysis is a tool that highlights imminent risk factors associated with a decision. Therefore, it is essential to screen legal provisions before they come into force to assess the implications within society, that is, it is important to invest in methodologies for analyzing legal norms so that negative impacts can be predicted and prevented. of the standards, and this must be before they come into force.

Here we are facing a cyclical chain. Within the framework of regulatory reform, it is important that those who set standards are guided by the aspect centered on the increasing value of intelligence. If employees do not feel involved in the reform process, that is, if the reforms do not have an explicit focus on what constitutes employees' concerns (progression, promotion, improvement of their working conditions, etc.), it implies that employees reform postulates will have no impact. In this case, it is necessary to anticipate future events and try to respond today (anticipability). From the perspective of "analysis", official and unofficial speeches are considered, that is, explicit and implicit speeches, including the study of the absence of a policy, since silence about a certain issue can be a strategy of action against it

several is to travel by land, before the trip the vehicle is inspected (conditioning). In this case, checking the vehicle is an ex-ante strategy that results ex-ante in the good condition of the vehicle.

• Predictability Analysis: In this case, fuel is an ex-ante (complementary) strategy that has the ex-ante result of “refueling” the vehicle for the success of the trip. Ex-post strategies follow ex-ante strategies, with the role of ensuring the completeness or feasibility of the action.

3.1.3.2 Normative Prognostic Analysis

Machine Translated by Google Fernandez, Marly (2013). Legal Norms: A Naturalistic Approach to Legal Implications.

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67 The legal system (like any normative system) is a set of norms. Legal systems are complex, that is, their norms come from more than one source. Kelsen's staggered theory of the legal order “serves to give an explanation of the unity of a complex legal order. Its core is that the norms of a legal system are not all on the same plane. There are higher norms and lower norms. The lower ones depend on the higher ones. When Kelsen says that Law is a coercive order, he means that it is composed of norms that regulate coercion. For Bobbio, the rules for the exercise of force are only those linked to the sanction, and not all norms. The objective of every legislator, for him, is not to organize force, but to organize society through force. See Bobbio. N. (2008) Theory of the legal system - Portal Jurídica Investidura, Florianópolis/SC, 26 May 2008. Available at: www.investidura.com.br/biblioteca-juridica/resumos/teoria-do-direito/93. Accessed on: 13 May 2015 The analysis of implications seeks to substantiate the approach taking into account a set of known and unknown future situations. Based on “assumptions”, the cascading consequences, risks or opportunities (domino effect) that a decision may entail in the future are studied: cost, medium and long term. The established postulates can bring benefits in the long term, however create losses in the medium or long term. In these cases, it is necessary to equate all possible situations and assess the degree or magnitude of impact, or effects, in such a way that if the rule causes damage in the future, then it may not be approved. The analysis of implications stems from speculative foundations of possible phenomena that could result in a chain of effects (positive or negative). Therefore, a hypothesis is assumed and an attempt is made to investigate the different scenarios that may arise from a given decision or rule. It is important in the analysis of implications to survey different hypothetical postulates associated with the norm and its cyclical relationship (chain).

Life in society is marked by a heterogeneity of demands, which from the outset contributes to the acceleration of contradictions of interest and conflicting expectations. It is the role of law to ensure harmony, given that it is part of human nature rooted in the determination of a set of norms that regulate society. According to Fernandez (2013)66, we have well-tuned norms of conduct because they allow us to maximize our ability to predict, control and model social behavior regarding the reaction of members of a given community. However, there is no legally valid norm without the existence of a corresponding legal system67, although it is possible to discuss whether or not the legal norm is fair or effective.

The major concern of Normative analysis is the management of uncertainty (risk environment, impact and effects). The norms are oriented to respond to a cause. They must be oriented towards real facts through concrete interventions – hence the option for predictability. "Policy analysis" is a study technique that makes it possible to form an opinion about the future effects of a given public policy based on the analysis of implications (hypotheses). According to the interests and the point from which it is interpreted and analyzed, different judgments can be obtained about it, allowing comparisons with others.

The analysis of implications is a tool that reveals the eminent risk factors associated with a decision. It translates the multiple effects of a decision, the incidence ratio, its amplitude, the levels of scope of the decision. It assumes the predictive principle when raising a set of hypotheses and as such it is important to take into account the uncertainty factors associated with predictability. The foundation of analysis of implications is directly associated with predictability. It studies possible future scenarios with a positive or negative dimension. It assumes the speculative facet and seeks to translate it into possible scenarios to happen in a cyclical chain.

The conception of justice that stems from this approach consists of taking the maximization of society's wealth as a criterion for assessing the justice of acts and institutions. This criterion would make it possible to reconcile the approaches of utility, freedom and equity. Regarding the social configuration that watches over the Middle Ages, where Natural Law and Positive Law coexisted, it is necessary that we pontificate its structure, so that we can then deal with its collapse and consequent rise of the Modern Age, where positivist dogmatism prevailed. Medieval times, historically speaking, begin with the end of the Roman Empire in the fifth century. In it, at the top of the social pyramid we had the first Estate (the nobility), followed by the Second Estate (the clergy) and the Third Estate (the people). ). The latter, made up of peasants and craftsmen who assumed the role of servants and were at a clear disadvantage compared to their superiors, had no political-legal representation. That is, only the so-called first and second states could boast of being holders of power. It is important to note that in medieval times there was no unified legal system, but rather a series of normalizing structures that together formed a plurality of rights.

3.1.4 The New Administrative Legal Order: Contemporary Defenses

3.1.3.3 Analysis of Normative Implications

3.1.4.1 Legal Norm and the social setting

Machine Translated by Google Grande, 2000. Dissertation (Master’s in Sociology) – Humanities Center, Federal University of Paraíba. RIBEIRO, Emmanuel Pedro. From legal pluralism to the plurality of rights: a non-essentialist construction of law. Meadow

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cell of the legal system (systematized body of rules of conduct, characterized by coerciveness and imperativeness), has the imperative force of conduct, which coerces subjects to behave in the way expected and desired.

state legal monism.

In contemporary society, the notion that the positivist norm no longer provides any and all answers to disputes is clarified. Even consumerism and unprecedented technological development that lead to globalization are also fundamental to demonstrate the senility of the modern system. Undoubtedly, the monist theory decays. In line with dogmatism, if we have a glass for water, in terms of positivism, this glass should not be used for other purposes. However, the table may be so small that there is no space for other glasses and you may prefer to use the same glass for a good wine. In this case, if the glass is actually used for other purposes, this is an infringement.

3.1.4.2 Administrative Delegation

Dogmatism assumes a conservative character, fixed and closed in its postulates. It follows a monodisciplinary perspective in its foundations. In Norberto Bobbio's interpretation, the process of normative production by the State's centralization effort resulting from the State's intention to gradually suppress the "parallel Powers", which certain social groups had to impose valid and generally accepted behaviors on the members of the respective community, including using coercive means. Nowadays, with the advancement and greater rapprochement between sciences, the paradigm of unity of normative legal no longer has weight. The opening of Law gave rise to several analytical conceptions with the aim of studying Law from different perspectives, apart from which Law itself began to assume pluralism as a settled way of ensuring the advancement and adequacy of its postulates in the face of today's world. Thus, despite the merit arising from the postulates of the pure theory of law, the removal of other facets of justice that may serve as a criterion for evaluating the

Delegalization consists of the possibility of the Legislative Power transferring, by means of law, its competence so that another body of the Executive or Judiciary can deal with the matter that would be its responsibility, in an innovative way, through a normative administrative act. For JUSTEN FILHO, delegalization consists of the possibility for Parliament to establish general principles and guidelines on a certain matter that is not an absolute reserve of law, but is already set out in formal law. And, in that same (supervening) delegalizing law, assign limited competence to the Public Administration to issue regulations, which would end up abrogating the formal law that was in force. Delegalization occurs when the Legislature hierarchically demotes a certain matter (which was previously dealt with by law) so that it can be dealt with by regulation. The phenomenon of delegalization was developed by Italian doctrine and consists of the possibility of the Legislature hierarchically demoting a certain matter so that it can be dealt with by regulation. It is, therefore, an institute that aims to give a new reading to the principle of legality, bringing greater flexibility to the legislative action, with the alteration of the normative content, without the need to go through the lengthy ordinary legislative process69.

standards. Law is not bound by despotic truth, hence the freedom of the interpreter to attribute meaning to Law. Likewise, the interpreter's will (will) cannot be eliminated in his hermeneutic task. From this angle, interdisciplinarity does not aim at the unity of knowledge but at partnership and mediation of partial knowledge, in the creation of knowledge. It is true that this element can be controlled in the legal discussion. The view of the isolated norm is shifted to a relational view of law with other normative sciences such as economics, administration, etc. standard. Dogmatic Questions have an explicit directive function and are finite. The dogmatic approach reveals the act of giving an opinion and reserves some of the opinions. When dealing with modern legal dogmatism the “undeniability of the starting points”, which says that a norm “can only be rejected on the basis of another legal norm.” According to dogmatics, then, since the State holds the monopoly of legal production, it is obliged to make use of its own law when deciding disputes between citizens -

http://www.espacojuridico.com/pfn-agu/?p=74

Modernly, the State has sovereign political power within a given territory and valid for its population. The normative system frames a set of norms that do not necessarily imply that they are all legal, meaning that the rights arising from that normative order as a whole must be safeguarded. By virtue of its sovereignty, the State takes for itself the monopoly of the production of law. Thus, the legal system becomes unified and centralized and the justice monopolized by the State becomes official justice (RIBEIRO, 2000)68. The legal system is based on an evaluative interrelationship between rules and principles.

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ROULAND, Norbert (2003) In the confines of Law. Sao Paulo, Martins Fontes. Assis, Olney Queiroz (2011). Legal anthropology manual— São Paulo : Saraiva, 2011. 34

Mestre Abelardo, medieval philosopher of the 11th century, is credited with the first written use of the expression Positive Law. BOBBIO, Norberto. Legal Positivism: Lessons in the Philosophy of Law. Icon: São Paulo, 1999, p. 19. 71 Moreira Neto, Diogo de Figueiredo. (2014). Administrative law course: introductory part, general part and special part – 16th ed. rev. and current. – Rio de Janeiro: Forense, ISBN: 978-85-309-5371-3

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In this pluralistic dimension of law, the analysis of public policies investigates the State's intervention in political-social relations. The pertinence of the standard can be configured with a principle

The principle of legality expresses the double legal submission of the State: to the norm and to the Law, the classic submission to the norm, expressed in the principle of legality, was expanded and overcome with the inclusion of both submission to legitimacy, politically connoted, and submission to lawfulness , morally connoted, constitutionally affirmed values of postmodern law, synthesized in the concept of juridicity. Thus, according to this most up-to-date nomenclature, the use of the expression legality is reserved when the reference is made to the norm in the strict sense, of a positive state norm. The principle of juridicity, thus integrated by legality, legitimacy and lawfulness, is aimed at meeting the most important purpose of Administrative Law, which in itself would justify it: the protection of the freedoms and rights of those administered, following in importance , the ordering of the legally relevant activities of the Administration. In this way, it can be seen as a new legal framework, built through the commitment of those who need the State's jurisdictional provision, but who are at the mercy of the ineffectiveness of this provision. According to Gomes Canotilho70, the principle of legality concerns not the field of material achievements directly, but rather that of administrative procedural-procedural functionalization and imposes the performance of the Administration not only in accordance with the law, but also in accordance with the Law, as a all. For the State, in the legal-administrative-procedural-procedural environment, the law is its starting point and Law, as a dogmatic science, its insurmountable frontier.

validity of the norm, as it is the main requirement for the effectiveness and efficiency of the legal norm. The law may exist but its application does not adjust to the reality of the moment, leading to it contributing to the restriction or limitation of progress and prosperity. It implies that the law must adapt to changes and be adjusted so that it is considered relevant to the national objectives of promoting justice, peace and development. This implies saying that the law cannot be seen in a static prism. They must meet the criterion of adaptability and suitability.

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In order to fulfill these missions, the State, in the exercise of the public administrative function entrusted to all entities and bodies that perform it in any capacity, has its juspolitically restrained actions by two techniques: that of limitation and that of control. The limitation acts through the legally imposed restriction on the State's action, with a view to protecting the freedoms and rights of those administered, thus consisting in its static containment. Control acts through reaction, as opposed to the action of the State, whenever it is necessary to make effective the protection of the freedoms and rights of threatened or vulnerable administrators, consisting, therefore, in their dynamic containment. In both cases, the constitutional primacy of the principle of legality is affirmed with this double expression – the static and the dynamic – which is why the present study should begin: how legality control is conceptualized and how it operates71.

According to Boaventura de Sousa Santos (1988:73, cited by Assis74), legal pluralism takes place whenever contradictions are condensed in the creation of social spaces, more or less

3.1.4.4 Legal Pluralism and Public Action

Legal Pluralism, as a new political and legal reference for the achievement of a fairer society, is justified by the reason for the contemporary crisis of Legal Positivism. According to Bobbio (1999), Legal Positivism arises from the expression Positive Law, which in its origins was used to oppose Natural Law. This notion of distinction and contrast dates back to Greek-Latin thought, but the current use of the phrase only began in the Middle Ages72. For Norbert Rouland (2003: 405)73, legal anthropology demonstrates its usefulness when it allows us to discover (and understand) the law that is hidden by codes, which sometimes do not adjust to the reality in which they are inserted. This notion is also evident when society, in constant transformation, does not find the evolutionary foundation of legal norms in law. All of this can be accepted, but naturally when people become aware that public legalism may be behind the inefficiency of the administrative machine, they seek to counter this reality, highlighting new ways in which public servants act.

3.1.4.3 Administrative Legality

Read more: http://jus.com.br/artigos/24817/o-surgimento-do-principio-da-juridicidade-no-direito

Machine Translated by Google Griboggi, Angela Maria (S/D) LEGAL PLURALISM AND THE CRISIS OF LEGAL POSITIVISM IN BRAZIL

35 76 75 See Teixeira, Carlos Manuel dos Santos (2014) Administrative Law. Extract from the article published in the book Direito de Angola. UAN Faculty of Law under the coordination of Prof. Elisa Rangel and Prof. Bacelar Gouveia. Luanda

77 SILVA FILHO, José Carlos Moreira da (1995). Legal Philosophy of Alterity. 1st ed. Curitiba: uruá, 1995, 280 p.

Silva Filho (1995)77 argues that the crisis in the paradigm of legal dogma affects peripheral reality in a much more acute way, as the inadequacy between law and reality, a sign of the crisis, in addition to compromising these societies in a more critical way, is already a symptom that dates back to the colonial period itself. Monist conceptions admit only one system of Law, whatever it may be, positive state law. When dealing with the subject, in monism only the legal system imposed by state bodies must be considered - Positive Law, with no positivity outside the State and without the State”. However, it must be reaffirmed that such conceptions are outdated in the current context. Legal Pluralism becomes important in this context, as it proves to be contrary to these realities, striving for equality and for a true democratic rule of law.

Legal pluralism presupposes the existence of more than one law or normative order in the same geographic space. For Professor Teixeira (2014) 75 it constitutes a challenge in an interactive way, a syllabus in approaching the foundations of law, with the goal and, in view of the basic heterogeneity, the transversality of this approach. According to Griboggi76, the crisis of legalism is a recent phenomenon, starting in the middle of the middle of the 20th century. XX, due to the fact that such a model does not correspond to current economic and social interests. Legal Pluralism presents itself as a concrete social reality, offering alternative ways of effectively realizing the needs of a multiple society, in the face of an Administration that does not meet the needs of the majority.

segregated, within which litigation or disputes are generated based on internal normative and institutional resources. These social spaces vary according to the dominant factor in their constitution (which can be socioeconomic, political or cultural) and according to the composition of the social class. Santos cites the customary legal space created by American merchants, by default

In a particular way, the Administration gradually undresses the trappings of power to present itself as a function, which the new trends claim to be performed not only with observance of legality - an effective administration, but with attention to legitimacy and integrity. morality-an efficient administration. The criterion for the “effectiveness” of a legal norm is assessed based on the adherence of its recipients, the people to whom it is addressed. Even if this norm/ legal fact is fair and valid, it is still possible that individuals do not comply with it, which appears to be a historicalsociological phenomenon of the behavior of those members of the community subject to its incidence.

The pluralist theory does not intend to deny the state structure, but rather to demonstrate that, concomitantly with it, there are other parallel forms of production of law, the State not being the only, nor the main legal source, but just one more among the many that are capable of establishing legal norms. Pluralism is seen as one of the ways to revolutionize Law, and admit greater flexibility of its theoretical postulates that guide Public Administration. And this under the following aspects: whether the standards are effectively complied with; if the norms contribute for the legal system to reach its objectives, and if the legal norms contribute to the social well-being and especially the implications in the functionality of the Public Administration that strives for the common good.

the norms of official law (civil and commercial), with the aim of facilitating transactions and reducing costs. It also highlights the spaces where minorities and illegal immigrants are concentrated.

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Law is the science whose object is the study of the rules that govern social coexistence.

3. The Administration needs to refresh its guiding postulates. Reformist programs focused on objective postulates, putting aside subjective factors such as change of mentality, accountability, moralization, professionalism, etc. The deterioration of living conditions resulting, among other factors, from the global crisis and the growing pressure on public intervention, in favor of basic services, raise, in Africa, contradictions between classes. There is a need for ideological openness in the field of law.

As Prof Feijó (2016) mentions, the preparation of the African citizen to deal with new realities presupposes a methodological revolution based on the recognition of the need for in-depth knowledge of legal and socially relevant realities, which deserve the protection of Law.

According to Boaventura de Sousa Santos (1988:73, quoted by Assis, legal pluralism takes place whenever contradictions are condensed into the creation of social spaces, more or less segregated, within which disputes or disputes are generated based on appeals For Professor Teixeira (2014) it constitutes an interactive challenge, a menu in approaching the fundamentals of law, having as a goal and, in view of the base heterogeneity, the transversality of this approach.

Law is the set of norms in force in a country, formed by a set of laws in force in a specific legal order and which establishes and governs the relations between individuals in that society.

7. With the advancement of theories of scientific methodology, Jurimetrics was born as an instrument to aid legal and judicial decisions. The pluralist dimension is seen as an emerging conception in the sense of opening the law to other areas and as such different perspectives are drawn in terms of analytical and conceptual foundations of the norms that govern Public Administration. The answers to these challenges require an analysis of the field

8. Legal thought reveals itself as a culturally historical entity. It is therefore not surprising that Roman, medieval, modern-Enlightenment and current legal thought are not confused (Feijó, 2016). These thoughts are different in their intentionality and methodical modality, in the nature of their rationality. The legitimization of normative power is essential so that the addressees of legal norms perceive that legislative activity is based on solid foundations, on reliable facts and analyses, and on important values and interests. It is the proposal of jurimetrics to allow a broad and direct approach for anyone interested in using the quantitative tool in law.

This dogmatic view of analysis of real phenomena closes the right to interdisciplinary analyses, leaving the reproductive function of what was thought to be the fairest, however at a given moment and in a given reality. The validity of the standard in books is not enough, but its full application and effective compliance is worth it. Public Administration has already undergone important transformations. As a result of these changes, efforts should be made to implement the principle of "good administration", where the public agent needs to be efficient, capable and committed to fundamental values such as legality, impersonality and morality. State reform must have as its driving force the deepening of democratization. It constitutes an imperative challenge rooted in law, a menu in approaching the fundamentals of law, having as a goal and, in view of the base heterogeneity, the transversality of its postulates and approaches. The Study focused attention on the analysis of the implications of the structuring principles and functionality of the Administration, having as guidelines the applicability and suitability of the legal norm in the public administration. Thus, one can consider:

5. It is necessary to open the frontiers of analysis of law through new ideological and analytical approaches, especially of a methodological nature for the assessment of legal norms. The economic analysis of law offers a set of analytical postulates leading to the analysis of normative quality. The effectiveness of the law is not enough, it is important to measure the level of efficiency (impact) as well as the effects and implications that may arise. Thus, the Economic Analysis of Law recommends a prior and successive assessment of the rules, in order to assess their pertinence and implications in the short, medium and long term, taking into account a set of factors.

6. The current Public Administration model is seen as static and out of adjustment to the current context and challenges. Today, public administration is seen as discouraging development and discouraging public entrepreneurship (creativity, innovation and proactivism). Currently, the public service is faced with two critical fundamentals, on the one hand, the dissatisfaction of public servants who call for good remuneration and working conditions and, on the other hand, the citizen who calls for a more efficient and responsible service.

4 FINAL CONSIDERATIONS

6. Legal pluralism has already provided sufficient proof of how important ideological openness is.

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interdisciplinary approach to deepen the implications arising from decisions based on the normative role of the State.

9. The regulatory impact assessment is today an indispensable technical tool in the regulatory process. The displacement of the problematic of the norm from the traditional paradigm of the application to concrete cases of neutral legal norms formulated in a general and abstract way, to the field of their creation and the effects that, directly and indirectly, they produce in social life and in economic relations , imposes on the legislator the duty to guarantee its quality, rationality and efficiency.

10. Jurieconomics proposes to bring prominent elements embodied in analytical intelligence to assess the legal norm. Normative intelligence will be the technical ability to analyze norms taking into account a set of postulates of the present and the future, objective and subjective, symptomatic and asymptomatic. In this sense, it is proposed the adoption of a new approach in the elaboration of normative acts (standard decrees and regulatory decrees), in which the attention is not only focused on the analysis of the problem and elaboration of the legislation, but also on the implementation, evaluation and revision thereof, with a view to improving efficiency, efficiency and effectiveness.

Notwithstanding the limiting factors of legalism, it can be seen that the central point would not be legalism per se, but the need for a prior and posterior assessment of the instruments with the application of analytical instruments for the normative diagnosis and prognosis. It is necessary to take into account analytical instruments and legal and intelligence tools for normative analysis (ex-ante and ex-post) in order to make the public service more flexible. It can be inferred that the central question that affects public administration from the point of view of legalism must be considered in the objective and subjective aspects. It is necessary to leave the generalist theoretical plan for an applied and factual plan. From proceduralism to flexibility and from positivism to pluralism. It is necessary to measure the implications of the effectiveness, efficiency and effectiveness of the norms for society as a whole, where the State is also an integral part. The normative foundation is seen as a field that must be supported by analytical standards based on predictive and anticipatory intelligence.

8. Within the framework of the reform of administrative procedures, analytical intelligence, likewise, offers a set of instruments for prior and successive assessment of the impact and implications of the rule. In this way, it is imperative to adopt analytical principles based on the predictability and anticipation of the expected results (efficacy), the effects and the analysis of the implications of the norm. Various analytical tools can be adopted for this purpose, such as public policy analysis methodology, interdisciplinary or multidisciplinary methodology, legal economic analysis methodology (legal microeconomics, legal strategy and tactics, etc.).

In short, there are several defenses around the delegalization of public administration, flexibility, legality, but it is understood that the central issue is in the monolithic character that guides the legal postulates. Law is just one of the systems of the normative universe, which goes beyond it, although there are those who say that others are pre-existing to it, such as religion, courtesy and morals. Considering that the law is not an end in itself, its purpose is to solve the problems of the society in which it operates. Consequently, normative validity is confused with the efficiency and effectiveness of the norm. Within the framework of the reform, it is important to methodically rethink the process of designing and drawing up standards.

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