Poucas certezas e muitas dúvidas: o direito depois da crise financeira

Abstract

10REVISTA DIREITO GV, SÃO PAULO 5(2) | P. 003-024 |

Espinosa no direito contemporâneo ou por uma teoria do direito como 'potentia'

“…O tema já fora objeto de aprofundamento por Faria em outro texto (FARIA, 2009). Neste estudo, afirma que no período dos governos social-democratas do pós-Guerra e das constituições dirigentes que se seguiram aos períodos autoritários, o poder político dos Estados se impunha de maneira inconteste aos capitais financeiros.…”

A Crise financeira global sob a ótica da concorrência fiscal internacional

“…of the global crisis, especially in financial and real estate markets, José Eduardo Faria stated that it was important to maintain the current model of regulatory state, that is, "The current model of regulatory regimes that operate within different spatial boundaries, where none of them is dominant, or incompatible with the legal state order." 3 According to the author, after a brief comparison between the theories of Keynes and Schumpeter, with the former being in favor of more intense state intervention and the latter being more attached to the idea of "free market", the crisis under examination, "the greatest one since the Great Depression of the decade that started in 1920 and the collapse of the New York Stock Exchange in 1929, brought Keynes and Schumpeter back to the political and economic debate." 4 The crisis, according to Faria, "derives both from new factors, such as the uncontrolled growth of derivatives, multiplication of nonstandard operations outside of regulated markets, [...] and from problems already known in records of bank turmoil since the Great Depression."…”

“…3 According to the author, after a brief comparison between the theories of Keynes and Schumpeter, with the former being in favor of more intense state intervention and the latter being more attached to the idea of "free market", the crisis under examination, "the greatest one since the Great Depression of the decade that started in 1920 and the collapse of the New York Stock Exchange in 1929, brought Keynes and Schumpeter back to the political and economic debate." 4 The crisis, according to Faria, "derives both from new factors, such as the uncontrolled growth of derivatives, multiplication of nonstandard operations outside of regulated markets, [...] and from problems already known in records of bank turmoil since the Great Depression." 5 In other words, some of the causes of the current global financial crisis are not new.…”

“…4 The crisis, according to Faria, "derives both from new factors, such as the uncontrolled growth of derivatives, multiplication of nonstandard operations outside of regulated markets, [...] and from problems already known in records of bank turmoil since the Great Depression." 5 In other words, some of the causes of the current global financial crisis are not new. They are indeed very old, as reported back in 1987 by Celso Furtado, 6 who dedicated himself, in an undeniably current study, to examining the situation of capital mobility and the formation of an extremely complex global economic system.…”

“…What draws attention of Faria's viewpoint is the assertion that one of the central problems of the world economy is precisely the integration of domestic systems, subjecting them "to the consequences of decisions made outside their respective territories," i.e., demonstrating that "the spaces traditionally reserved for the law and politics no longer coincide with the territorial space" and that "national states have experienced increasing difficulty in counteracting the effects of external factors and act as a regulator". 7 In fact, Faria explains that, among the hypotheses raised in his work, only two of them are likely to be confirmed, with the others being ruled out due to the "excessive idealism and impracticality of a 'global regulatory body' [...]" 8 and because one should not expect economic agents to behave responsibly in their market activities. 9 In the author's opinion, the most viable hypotheses are the following ones: (i) the institutional strengthening of integration blocs, with regionalization processes, using the EU as a paradigm, and (ii) the possible proliferation of regulatory regimes of different orders, with a tendency towards the internationalization of regulatory mechanisms, where there is the expansion of "specific rules and regulations, with jurisdiction not over territories, but over markets and supply chains," through "a body of practices, uses and customs, codes of self-conduct or good practices", 10 which is a model that is founded on supranational sources.…”