The Symbolic Deafness of Courts and the Procedural State of Exception
A Critique of Decisionism in the Systematic Dismissal of Embargos Declaratórios (Declaratory Motions)
Prof. Murillo Gutier
E-mail: murillo@gutier.adv.br
Abstract
This article critically examines an institutional pathology of Brazilian procedural law: the systematic dismissal of declaratory motions (embargos de declaração) through standardised, generic formulas, without examining the concrete content of the motion. This practice – shaped by what is known as defensive case law (jurisprudência defensiva) – empties the institution of its constitutional function and opens a gap between the formal law and the actual judicial practice.
The analysis proceeds through three complementary theoretical registers: Slavoj Žižek’s symbolic violence, which allows the identification of an institutional deafness prior to any visible aggression; Giorgio Agamben’s state of exception, which describes the suspension of the procedural norm without its formal revocation; and Carl Schmitt’s decisionism, which illuminates the posture of the judge who decides a priori, without bearing the argumentative burden of the norm.
The study examines the cognitive asymmetry between lawyer and judge, the sophism of the dispensability of exhaustive examination, the threefold violation of the adversarial principle (right to be heard, right to influence, and prohibition of surprise decisions), phantom decisions, Schmittian decisionism in the procedural sovereignty of the judge, and the systemic effects of the disqualification of declaratory motions. Concrete proposals for the requalification of the institution are formulated in the conclusion.
Keywords: declaratory motion – symbolic deafness – procedural state of exception – decisionism – defensive case law – symbolic violence – duty of reasoning – adversarial principle
The Symbolic Deafness of Courts - Murillo Gutier (6 downloads )