Análisis económico de los institutos jurídicos denominados provisionalidad, pre pensionados y concurso de méritos. Una revisión desde la jurisprudencia

Abstract

This research paper aims to demonstrate how the economic analysis of law (EAL) influences the divergence between a provisional pre-pensioner and the winner of a merit-based competition. This issue arises from the disparity and lack of consistent criteria in the rulings of the high courts, which generate contradictions across different judicial scenarios, resulting in legal uncertainty for those subject to administrative decisions. As a substantive theory, EAL seeks to uncover the underlying rationale of judicial decisions and to guide those who administer justice in making rulings that properly align with the law. This study employs a deductive method, analyzing judgments issued by the Council of State and the Constitutional Court, as well as assessing the efficiency analysis these judicial bodies conduct regarding fundamental rights—such as equality and merit—versus rights to social security, a minimum subsistence level, and life under dignified conditions. The goal is to qualitatively identify the criteria for divergence and convergence of these high courts in relation to the subject matter, and to examine the influence of the economic analysis of law on these decisions.