[COLUNA] Leis não resolvem problemas – Caíque Januzzi

[COLUNA] Leis não resolvem problemas – Caíque Januzzi

Leis não resolvem problemas

O problema estatista brasileiro é mais grave do que pensamos. Não é só defender o fim da intervenção do Estado na economia, as privatizações e, por consequência, a diminuição dos impostos: a mentalidade do brasileiro está contaminada com o estatismo. Temos o costume de pensar nas leis como meios para a resolução de problemas, sejam eles econômicos, educacionais, de segurança, etc.

Ah, que mundo lindo seria esse, hein? Inflação? Assine um pedaço de papel que a proíba e garanto que nunca mais a teremos. Desemprego? Assine uma lei e os empresários passarão a contratar. Altos índices de insegurança pública? Assine uma lei e problema resolvido: criminosos não irão mais assaltar. Problemas com dengue? Que tal proibirmos água parada…

Infelizmente – ou não – as leis não possuem esse poder e essa característica. Não são capazes de alterar costumes, que só são alterados pelo exemplo. Já dizia Montesquieu em “Do Espírito das Leis”:

“Dissemos que as leis eram instituições particulares e precisas do legislador, os costumes e os comportamentos, instituições da nação em geral. (…). Assim, quando um príncipe quer fazer grandes mudanças em sua nação, deve reformar pelas leis o que é estabelecido pelas leis, e mudar pelos comportamentos o que é estabelecido pelos comportamentos; e é péssima política mudar pelas leis o que deve ser mudado pelos comportamentos. (…). Há meios para impedir os crimes: as penas; há meios para mudar os comportamentos: os exemplos.” [1]

De acordo com esse raciocínio, as leis não modificam para melhor as situações econômicas, que só são resolvidas de forma eficiente pela mão invisível do mercado – por meio daquilo que é estabelecido pelo mercado. Dando prosseguimento às negações, a legislação não altera o número de crimes, vide o estatuto do desarmamento. O que os altera é a educação – a longo prazo – e o exemplo da punição – a curto prazo.

Essa mentalidade é triste e sua consequência gravíssima para o país. Torna a legislação improdutiva e afasta o Estado dos seus principais focos: saúde, educação e segurança. Gasta-se o dinheiro do contribuinte para fiscalizar inutilidades, como a temperatura mínima na qual o yakisoba e a pamonha devem ser mantidos depois de prontos. [2] Além do desvio da função do Estado, há de se reconhecer que tais leis são um incentivo para a corrupção.

Também é comum escutar da população brasileira frases como: “Temos boas leis. O problema é que somos incapazes de aplicá-las da forma correta”. Erro comum! No nosso país há leis demais, há leis para tudo – até para o yakisoba.

Se o Estado fosse de fato eficiente, ao aplicá-las teríamos paralização e retrocesso geral. Dou como exemplo o que aconteceu com o mercado de trabalho: foi paralisado pela enorme gama de leis trabalhistas, que na teoria legal, deveriam proteger o trabalhador (dos malvados exploradores que desejam empregar-lhe), mas que na prática só aumentou o número de desempregados e de trabalhadores informais.

A visão da lei como resolução de problemas característicos dos costumes ou dos valores, faz com que seja corrente no imaginário popular brasileiro a ideia do “direito como ferramenta de mudança social”. Essa ideia é decorrente também da adoção do pós-positivismo legal como doutrina majoritária dentro das universidades, e até mesmo do STF. Nela utilizam-se os caprichos do jurista para enviesar a sociedade.

Mas na sua origem o Direito era um mecanismo para a resolução de conflitos de forma pacífica e eficiente. E pasmem: isso é ensinado no primeiro período das faculdades. Me parece que os juristas esquecem desse simples ensinamento. Distorcem o Direito enquanto ciência, e tornam a ciência – que por definição é precisa – em algo líquido. Trata-se de uma engenharia social na qual os burocratas são venerados, tratados como seres acima do povo, quando na realidade, são servidores do povo. Servidores públicos.

Tomando cuidado para não parecer algum youtuber criando teorias da conspiração, peço para que o leitor exercite sua memória: quantas vezes já viu um funcionário, pago com seus impostos, dar-se uma carteirada? Quantas vezes agradou um servidor apenas por ele ter o crachá de um órgão público? Bem, acredito que muitas.

A conclusão que fica é: não adianta lutarmos apenas pelo liberalismo econômico. Temos de buscar pela mudança no pensamento do brasileiro. O Estado deve cuidar daquilo que é do Estado e deixar que os indivíduos cuidem daquilo que é deles. Não estou aqui defendendo o fim do Estado – acredito que ele deva existir – estou aqui defendendo um Estado que faça seu papel de Estado, não o papel de um Engenheiro Social.

Referências:

[1] Do Espírito das Leis, página 413. Montesquieu, Editora Martin Claret, edição especial

[2] leismunicipais.com.br/a/sp/s/saopaulo/decreto/2004/4567/45674/decreto-n-45674-2004-dispoe-sobre-o-funcionamento-das-feiras-livres-no-municipio-de-sao-paulo-e-consolida-as-normas-pertinentes-ao-assunto

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