CONVERGENCE WITH COMMON LAW AS AN ELEMENT VALIDATING ECONOMIC ANALYSIS OF LAW IN THE BRAZILIAN LEGAL SYSTEM

Abstract

This paper investigates the growing acceptance of Economic Analysis of Law (EAL) in the Brazilian legal system and argues, as a central hypothesis, that this phenomenon is related to Brazil's progressive approximation to the precedent-based model characteristic of common law. Methodologically, a critical analysis of the theoretical and bibliographic matrix is developed in two complementary movements: first, the origins, premises, and epistemological bases of ELA are examined, and then the legal and institutional factors that have broadened its acceptability in decision-making practice are analyzed. The study also systematizes criticisms directed at the normative use of AED, especially regarding the risk of excluding fundamental values (equity, protection of minorities, distributive justice) in the face of the primacy of economic efficiency and a utilitarian bias, while recognizing that, on a descriptive level, AED tends to be less controversial. The main conclusion is that the transition of the Brazilian system, historically linked to civil law, to a hybrid arrangement with a strong focus on binding precedents serves as a validating and authorizing element of AED in the application of law, insofar as it expands the role of the judge as a shaper of the norm and demands interdisciplinary instruments for decision-making and stabilization; However, to be compatible with a social state, such incorporation must be accompanied by a reorientation of the underlying economic paradigm, shifting it toward references of social welfare, regulation, and sustainability, preventing efficiency from becoming the exclusive criterion of justice.