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Idyllic Constitutionalism: The Constitution Between Normative Reality and Interpretive Reverie

Murillo Gutier | murillo@gutier.adv.br

Abstract

The article investigates the phenomenon of idyllic constitutionalism — a hermeneutic posture in which the affective bond between interpreter and Constitution dissimulately replaces obedience to the real document, thereby establishing what has come to be termed idyllic constitutionalism. Drawing together psychoanalysis, legal theory, and case law, the reflection describes how the interpreter, frustrated by imperfections in the constitutional text, resorts to a morality control disguised as systematic interpretation. From Baron de Montesquieu to Plato and Saint Augustine, and passing through the doctrine of Carlos Ayres Britto, the study examines how the case law of the Federal Supreme Court (STF) — particularly in RE 328.232/AM and ADPF 132/RJ — has incorporated elements of this romanticized reading. The central thesis holds that accepting the Constitution as it is, with its flaws and contradictions, constitutes an unavoidable requirement for anyone who takes the Democratic Rule of Law seriously.

Keywords: idyllic constitutionalism; constitutional interpretation; morality control; Democratic Rule of Law; hermeneutics; psychoanalysis of law; frustration tolerance.

Idyllic Constitutionalism - The Constitution Between Normative Reality and Interpretive Reverie - Murillo Gutier (264 downloads )
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Who Guards the Constitution: The Fragmentation of Decision-Making Power in the Brazilian Supreme Federal Court

Murillo Gutier | murillo@gutier.adv.br

Abstract

This article investigates the fragmentation of decision-making power in the Brazilian Supreme Federal Court (STF), demonstrating that the tribunal’s institutional practice has departed from the model of collegial deliberation envisioned by the 1988 Constitution. Drawing on the concepts of supremocracy, formulated by Oscar Vilhena Vieira, and ministrocracy, developed by Diego Werneck Arguelhes and Leandro Molhano Ribeiro, the study analyzes how monocratic decision-making — originally exceptional and precarious — has become an ordinary instrument of individualized constitutional adjudication. The article examines paradigmatic episodes of concentration of individual power among justices, addresses veto-player theory and the three dimensions of judicial power (to decide, to signal, and to set the agenda), and assesses the democratic consequences of this configuration, with emphasis on internal counter-majoritarianism, jurisprudential contingency, and the risk of institutional capture. The article proposes institutional reforms to rebalance the tension between individual and collective power in the court.

Keywords: supremocracy; ministrocracy; decision-making power; judicial review; monocratic decision; constitutional adjudication; collegial deliberation; individual power; Brazilian Supreme Federal Court; STF.

Who Guards the Constitution? The Fragmentation of Decision-Making Power in the Brazilian Supreme Federal Court - Murillo Gutier (634 downloads )
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Wounded Impartiality: The Republican Limbo of the Brazilian Supreme Court and the Principled Fallacy of ADPF 919

Wounded Impartiality

The Republican Limbo of the Brazilian Supreme Court and the Principled Fallacy of ADPF 919

A critical response to the article “A plea bargain agreement cannot prevail over the Constitution,” by Lenio Streck and André Karam Trindade

Murillo Gutier | murillo@gutier.adv.br

Abstract

This article critically examines the thesis that “plea bargain agreements cannot prevail over the Constitution,” advanced by Lenio Streck and André Karam Trindade in the context of ADPF 919/DF. While the proposition is, in the abstract, legally defensible, the analysis demonstrates that the doctrinal silence regarding the objective impartiality of Brazilian Supreme Court (STF) Justices involved in the Banco Master scandal constitutes a principled fallacy. By confronting the principle of nemo iudex in causa sua with the absence of effective mechanisms for controlling judicial recusal at the apex of the Brazilian judiciary, the article argues that ADPF 919 reveals a pattern of supreme anti-republicanism, in which the Constitution is invoked not to limit power but to immunize it. The study draws on comparative law (Germany, the United States, Spain, and Portugal), precedents from the ECtHR, the IACtHR, and the STF itself, as well as contributions from Ferrajoli, Alexy, Häberle, Bobbio, and Loewenstein.

Keywords: judicial impartiality; ADPF 919; plea bargaining; Banco Master; republicanism; nemo iudex in causa sua; judicial recusal; principled fallacy; separation of powers; constitutional law.

Wounded Impartiality - The Republican Limbo of the Brazilian Supreme Court and the Principled Fallacy of ADPF 919 - Murillo Gutier (638 downloads )
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Is the Brazilian Supreme Federal Court a Criminal Court?: A constitutional critique of the trial of AP 1.060/DF (January 8, 2023 case)

Is the Brazilian Supreme Federal Court a Criminal Court?

Constitutional Critique of the Judgment in AP 1,060/DF: Opportunistic Activism, the Weakening of Judicial Precedent, and the Transformation of the Brazilian Supreme Court into a Criminal Tribunal

Murillo Gutier | murillo@gutier.adv.br

Abstract

This study offers a constitutional critique of the judgment in AP 1,060/DF by the Brazilian Supreme Federal Court (Supremo Tribunal Federal – STF). The analysis focuses on the tension between this decision and the restrictive doctrine of special jurisdiction by reason of office (foro por prerrogativa de função) consolidated in AP 937 QO/RJ (2018) and ADI 2,553/MA (2019). While these earlier rulings recognized special jurisdiction as an exception to the natural judge principle, binding it to offenses committed during the mandate and in the exercise of official functions, the AP 1,060/DF decision pursued the opposite path: through the broad use of connection, the Court absorbed ordinary defendants on a massive scale, effectively transforming the STF into an ordinary Criminal Tribunal.

The study examines the inversion of the severance rule, the violation of the natural judge principle (Article 5, LIII and XXXVII of the Constitution), the deficit of dual jurisdiction (Article 8(2)(h) of the Pact of San José), and the political context of the judgment and its impact on judicial serenity. Furthermore, the decision is analyzed through Georges Abboud’s typology of activisms, demonstrating that it cumulatively exhibits at least five activist modalities: performative activism, activism against the limits of the text, populist-punitivist activism, purely consequentialist activism, and administrative activism.

Finally, the study identifies the phenomenon of opportunistic activism (ativismo de ocasião) as a recurring pattern in the STF’s recent jurisprudence: an interpretive stance that, under political pressure, loosens its own established precedents, thereby undermining the binding force of constitutional adjudication, the epistemic authority of the Court, and the constitutional jurisdictional architecture of Article 102 of the Federal Constitution. The study concludes that the decision constitutes a self-contradictory precedent that acts in the name of the Constitution against the Constitution itself.

Keywords: special jurisdiction by reason of office; opportunistic activism; natural judge principle; judicial precedent; constitutional jurisdiction; AP 1,060/DF; Brazilian Supreme Court (STF).

Is the Brazilian Supreme Federal Court a Criminal Court? - Murillo Gutier (656 downloads )