THE COLLECTIVE ACTIONS HELD HOSTAGE BY THE AUTHORITARISM

Abstract

The judicial protection of  collective interests represents, at the end of the millennium, one of the most impressive conquests of the Brazilian legal system. The transindividual interests which are particular to mass society are full of political relevance and, to that extent, are capable of transforming stratified judicial concepts. The recognition of these interests and the need to protect them have highlighted their political configuration in Brazil. In this way, the theory of public liberty forged a new “generation” of fundamental rights. In the same way, one can note that, at the constitutional level, the concepts of jurisdiction and litigation were renewed, while some fundamental guarantees were reformed. The most notable revolution, however, might have taken place in the procedural sphere, departing from an individual process model toward a social process model In Brazil, the Judiciary power has also taken advantage of class action lawsuits in terms of rationalization and work projection. The social objective of the judicial function was lost in view of the fragmentation and the pulverization of conflicts, always regarded as individual. There is a notable tendency to replace atomized decisions with a molecular treatment of litigation. Nevertheless, the Executive power has revealed itself to be inattentive to the reality of collective action and has tried to reduce its effectiveness, limiting access to courts, compressing the associative moment, and diminishing the role of the Judiciary. In this perspective, many years after the introduction of judicial protection for collective and diffuse interests in Brazil, the balance would have been positive, had the government not adopted an authoritarian line when applying legal treatment to the matter. It is possible to affirm that collective actions are a part of the current legal routine, despite the attacks which they suffer. The Judiciary power is significantly implanted in this context, it is conscious of its new role and of its renewed importance, and by way of its sentences, it was capable of occupying a position of leadership which points toward future challenges. The only note that rings false in this context is the attitude of the government with relation to the use of Provisional Measures to reverse such a situation, attacking collective actions and trying to diminish their efficiency in order to limit the access to Justice, to frustrate the associative moment and to make the Judiciary seem less important. The Legislative power, complacent or inattentive, has not been able to resist the attacks and to react to the attitudes of the government.