Submitted by CLAUDIA MARIA DE ARRUDA null (claudiaarruda@adv.oabsp.org.br) on 2016-06-18T02:13:19Z No. of bitstreams: 1 DISSERTAÇÃO CLAUDIA MARIA DE ARRUDA.pdf: 1474133 bytes, checksum: 54c338787189cbd56c6a627e7cd61e1b (MD5) / Approved for entry into archive by Ana Paula Grisoto (grisotoana@reitoria.unesp.br) on 2016-06-21T19:41:39Z (GMT) No. of bitstreams: 1 arruda_cm_me_mar.pdf: 1474133 bytes, checksum: 54c338787189cbd56c6a627e7cd61e1b (MD5) / Made available in DSpace on 2016-06-21T19:41:39Z (GMT). No. of bitstreams: 1 arruda_cm_me_mar.pdf: 1474133 bytes, checksum: 54c338787189cbd56c6a627e7cd61e1b (MD5) Previous issue date: 2016-05-05 / A compreensão das decisões judiciais sobre a impenhorabilidade da pequena propriedade rural requer o conhecimento da Questão Agrária brasileira. É nesse contexto histórico, e de correlação de forças, que se verificam as “raízes” que impedem a concretização dessa proteção legal. Por meio do Poder Judiciário se mantem a estrutura fundiária concentrada no Brasil, e a garantia do cumprimento dos contratos em litígios envolvendo Bancos e pequenos proprietários rurais. Verificou-se, no entanto, decisões minoritárias que não seguem determinada jurisprudência. / The understanding of Judicial decisions about unseizability of the small rural property requires knowledge of the rural brazilian Agrarian Question. It is within this historical context, and correlation of forces, which are found the "roots" that prevent the realization of this legal protection. Through the Judiciary keeps the concentrated land ownership in Brazil, and ensuring compliance with contracts in disputes involving banks and small landowners. However, minority decisions which do not follow the jurisprudence have been seen.

Standard explanations of judicial behaviour (i.e. legal, rational-choice, attitudinal, and institutional models) are overly static and exogenous, interested in instances of sudden change in judicial behaviour, as triggered by appointments, legal reforms, or shifts in the political context. While these models are useful in understanding the external incentives affecting judicial behaviour, they are unsuitable for explaining sustained judicial empowerment beyond temporary strategic calculations. In response, recent 'ideational' approaches, especially studying constitutional courts, highlight the importance of judges' ideas about their role - not their ideologies or policy preferences - in instilling a mission, rather than an incentive-oriented view of the judicial function. Yet, despite their more dynamic approaches, those methods have overlooked how ideational change in the 'outside' world translates into change 'inside' this type of courts. Due to those limitations, this study proposes a complementary explanation of judicial empowerment: a theory of informal mandates and endogenous empowerment. Viewed through this lens, change and variation in judicial empowerment within and across cases are explained by the construction, expansion, and endurance - or absence and collapse - of collective internal understandings of the court's role and mission. Such understandings are developed as legal doctrines and articulated under broader informal mandates by 'mission leaders'. Gradually, these informal mandates can expand and gather majority support from strategic partnerships formed between 'mission leaders' and 'supporting leaders' - usually justices with high seniority. The more these informal mandates expand and endure inside the court, the less exogenous factors and strategic incentives over-determine its behaviour in the long-run. Judicial empowerment, thus, is better understood as a process that develops and expands gradually, endogenously, and informally, with a mission-oriented purpose. The theory is applied in the constitutional tribunals of Costa Rica, Chile, and Uruguay from 1990 to 2016. These countries have similar rule-of-law conditions, but their constitutional tribunals differ considerably in the strength and endurance of their informal mandates and, as a result, have attained different levels of judicial empowerment.