Revista da EMERJ - V. 21 - N. 2 - Maio/Agosto - 2019

13  R. EMERJ, Rio de Janeiro, v. 21, n. 2, p. 11-39, Maio-Agosto, 2019  (a) Introducing a principle of efficiency of civil procedure should be regarded as undesirable, because it could serve as a point of entry for neoliberal market ideology, particularly the “doing business” approach, into the administration of civil justice; 4 (b) The reference to efficiency is really necessary, as efficiency could be seen as a facet of the wider claim to the effectiveness of judicial protec- tion of rights; (c) If a principle of efficiency of civil procedure ought to be intro- duced into the legal system, what wording is to be adopted and subject to such wording what practical consequences are to be expected? 2. Efficiency or Effectiveness? The most sustained objections against incorporating a principle of efficiency of civil procedure arise from the fear that such codification could be the point of entry into the legal system for neoliberal market ideology, which aims to subordinate the judicial protection of rights to a profit maximising and cost minimising approach, with a view to optimal resource allocation. This argument usually includes a more general objec- tion to the U.S. Law & Economics movement. Judicial protection of rights and efficiency (for the purpose of wel- fare economics: wealth maximization), however, do not appear mutually incompatible. As Steven Shavell states: “According to the framework of welfare economics, social welfare is assumed to be a function of individuals’ well being, thatis, of their utili- ties. An individual’s utility, in turn, can depend on anything about which the individual cares: not only material wants, but also, for example, a es- thetic tastes, altruistic feelings, or a desire for notions of fairness to be satisfied. Hence, social welfare can depend on any of these elements, and will depend on them to the extent that individuals’ utilities do. It is thus a mistake to believe that, under the economic view, social welfare reflects only narrowly ‘economic’ factors, namely the amount of goods and ser- vices to be produced and enjoyed”. 5 4 Cf. R. Stürner , Die Rolle des dogmatischen Denkens im Zivilprozessrecht, Zeitschrift für Zivilprozess, ZZP 127 (2014), p. 271 ff., p. 310 ff.; A. Bruns , Der Zivilprozess zwischen Rechtsschutzgewährleistung und Effizienz, Zeitschrift für Zivil- prozess, ZZP 124 (2011), p. 29 ff. 5 S. Shavell , Foundations of Economic Analysis of Law, Harvard University Press, 2004, p. 2; G. Calabresi , The future of