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Procedural Law: The Symbolic Deafness of Courts and the Procedural State of Exception – Murillo Gutier

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 (128 downloads )
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Judicial Activism and Juristocracy: Barroso’s Decision on Abortion as a Paradigm of Self-Grounded Power – Murillo Gutier

Murillo Gutier | murillo@gutier.adv.br

Abstract

This study examines the farewell vote of Justice Luís Roberto Barroso favoring the decriminalization of abortion up to the twelfth week, investigating three phenomena frequently noted in specialized literature: judicial activism, juristocracy, and ministrocracy. The first refers to the overcoming of positive normative frameworks through extralegal reasons — moral, political, or ethical views of the adjudicator — culminating in decisionism. The second, in institutional terms, describes the judicial capture of politically sensitive decisions previously reserved to democratic deliberation. The third highlights the intense monocratic activity at the Supremo Tribunal Federal, which empties out collegiality and weakens the deliberative virtues proper to a constitutional court.

From this framing, the analyzed vote is shown to exceed the typical countermajoritarian function of judicial review — guardian of constitutional supremacy — and to invade the sphere of political conformation reserved to the legislator, converting individual valuative preferences into normative parameters. The critical point does not reside in the substantive theme in dispute, but in the method of decision: when reasons not extracted from the constitutional text or the law come to govern the outcome, jurisdiction ceases to operate as a limit and begins to act as an autonomous source of normative production, with effects on individual liberties and on the very separation of powers.

The study articulates the concrete case to the theoretical categories mentioned and confronts a relevant element of the Supremo Tribunal Federal itself: the idea of the eloquent silence of the legislator, whereby the deliberate absence of normative regulation may express a valid political choice to await the maturation of the social debate. The purpose is to circumscribe the examination to verifiable institutional questions, making explicit the methodological criteria that guide the analysis — textuality and structure of the Constitution, coherence with consolidated jurisprudence, standard of deference to the Legislature, and observance of collegiality.

Keywords: Judicial Activism; Juristocracy; Ministrocracy; Separation of Powers; Decisionism; Self-Grounded Power; Eloquent Silence; Democratic Legitimacy; Supreme Federal Court (STF).

Judicial Activism and Juristocracy – Murillo Gutier (564 downloads )