O controle judicial do orçamento público e efetivação dos direitos fundamentais sociais sob a ótica da análise econômica do direito

Abstract

The dissertation examines judicial control of the public budget as a mechanism for realizing social fundamental rights, situated within the fields of adjudication and human rights and grounded in the Economic Analysis of Law (EAL). It addresses the problem of omissions and budgetary choices incompatible with the essential core of social rights, which drive judicialization absent clear parameters of allocative rationality and respect for the separation of powers. The study aimed to assess the legal-practical feasibility of judicial intervention in budgetary decision-making and to delineate criteria by which court rulings can promote rights with efficiency, equity, and fiscal sustainability. It employed a qualitative approach and a bibliographic-documentary method, examining constitutional and statutory norms, legal scholarship, and recent case law (2020–2025) from the Federal Supreme Court, the Superior Court of Justice, and state courts; as technical procedures, it conducted analyses of leading cases and applied criteria of allocative efficiency, cost–benefit, cost-effectiveness, impact assessment, externalities, distributive equity, and elements of game theory. The results identify when judicial intervention is warranted in the face of state omissions, recommending a preference for outcome-oriented orders accompanied by an administrative implementation plan, the identification of limits arising from the separation of powers, the “reserve of the possible” (reserva do possível) and the existential minimum, the systematization of enforcement instruments (fines, blocking of funds, and compliance measures), and the mitigation of risks of administrative disorganization and bureaucratic paralysis (apagão das canetas). As an applied product, the dissertation proposes a practical roadmap for budget- impacting decisions: diagnosis of omission, institutional dialogue, technical-economic evidentiary development, impact analysis, cost-effective prioritization, timeline and governance, and indicator-based monitoring. It concludes that judicial control of the budget is both possible and necessary when calibrated by EAL, as it maximizes the effectiveness of social rights with rationality, efficiency, and distributive justice, without breaching the State’s fiscal and institutional constraints.