Legal Consequentialism and Decision-making Process: Prognostic Argumentation in Civil Litigation and Structural Process

This book reframes consequentialism as a legitimate tool of legal argumentation, one capable of strengthening judicial reasoning rather than undermining it. To that end, it maps the philosophical, sociological, and legal roots of consequentialist thought and shows how these ideas can be translated into a method of decision-making that is both rigorous and attentive to social reality. The study examines central debates in legal interpretation and argumentation theory, including the criteria that define a “good argument” and the relevance of consequential analysis, particularly in contexts where judicial interventions extend beyond a single ruling and require sustained institutional engagement. The study then turns to structural processes, a technique designed to address complex social problems through gradual, coordinated, and long-term institutional change. By connecting theoretical reflection to practical judicial challenges, the book demonstrates why structural litigation is one of the most important spheres for consequentialist reasoning, when adopting a forward-looking, prognostic approach. When employed thoughtfully, consequentialism helps the Judiciary deliver more effective, legitimate, and socially responsive outcomes, bringing constitutional promises closer to reality and reinforcing the credibility of judicial action.

PUCRS Collection Boards

About the author

Acknowledgements

Presentation

Preface

Context

Introduction



CHAPTER 1

THE NECESSARY UNDERSTANDING OF CONSEQUENTIALISM AS A THEORY

1.1 Origin and conceptual considerations of consequentialism

1.1.1 Consequentialism in Philosophy, Sociology and Law: proposals and
problems

1.1.1.1 Niklas Luhmann

1.1.1.2 Chaïm Perelman

1.2 Consequentialism through the jurisdictional perspective

1.2.1 Consequentialist Arguments: What are those?

1.2.1.1 Robert Alexy

1.2.1.2 Neil MacCormick

1.2.1.3 Michael Sandel

1.2.1.4 Tércio Sampaio Ferraz Júnior

1.3 Summarizing the first chapter



CHAPTER 2

DECISION-MAKING PROCESS AND CONSEQUENTIALISM

2.1 Legal Interpretation: Why to interpret when it comes to legal matters

2.1.1 Models of interpretation and classic methods of interpretation

2.1.2 Problems and critics of interpretation methods: the need for
reasonableness and proportionality

2.2 Legal Argumentation: What is it and What is it for

2.2.1 Scheme of arguments and criteria of a “good argument”

2.2.2 Consequentialism as a method of Legal Argumentation

2.2.2.1 Internal and External Consequentialism: decision-making process
categorization

2.2.2.2 First and Second order consequentialism: the functional perspective

2.2.2.3 Acts and Rules Consequentialism: ethics categorization

2.3 The possibility of Prognostic Argumentation in decision-making process

2.4 The critics about Prognostic Argumentation

2.4.1 Consequentialism, Judicial Activism and Discretion

2.4.2 How political is consequentialism

2.5 Summarizing the second chapter



CHAPTER 3

CONSEQUENTIALISM: A STUDY THROUGH THE LENSES OF STRUCTURAL PROCESSES

3.1 Structural Processes: A historical approach

3.1.1 Characteristics of structural processes

3.1.2 State of Unconstitutional Affairs or Nonconformity State

3.1.3 Structural decisions

3.2 Structural process and the future-oriented role of the judiciary: a
study through the case of Government of the Republic of South Africa and
others v. Grootboom and others

3.2.1 Analysis of the Grootboom Case

3.2.2 The decision content of the Grootboom Case

3.2.3 Prognostic Argumentation within the Grootboom Case

3.3 Summarizing the third chapter

Final considerations

References

Appendix