Navegando por Assunto "Supreme Federal Court"

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Acesso aberto (Open Access)
O Estado de Coisas Inconstitucional na ADPF 347 e a sedução do Direito: o impacto da medida cautelar e a resposta dos poderes políticos
(Fundação Getulio Vargas, 2019) MAGALHÃES, Breno Baía
This article intends to analyze the State of Unconstitutional Affairs from the evaluation of the impacts of the interim order granted by the STF in the three branches of the Republic and the possibility of social changes from it. Dealing with the decision of the STF in ADPF 347 as a decision that creates political paths to be covered by the involved agents, in this case, the Executive, Legisla tive and Judicial powers, it seeks to evaluate the feasibility of the answers pre sented in order to reach, or not, the requirements formulated by the judicial decision. The data collected in the scope of the powers were contrasted with the objectives of the interim orders and with the justifications of the State of Unconstitutional Affairs. Next, the article argues for the impossibility of changes in the factual situation presented through legal categories, based on Gerald Rosenberg’s theses on social changes through law. The study concludes that the granted interim orders are not effective, because the powers presented answers that follow the same nature of the policies traditionally developed in Brazil, and that a social change is unlikely through the declaration of the State of Unconstitutional Affairs
Acesso aberto (Open Access)
A incrível doutrina de um caso só: análise do estado de coisas inconstitucional na ADPF 347
(Universidade Federal de Santa Maria, 2019) MAGALHÃES, Breno Baía
The article intends to make a dogmatic analysis of ADPF 347, a judicial precedent that inserted the category State of Unconstitutional Affairs (SUA) in the interpretative canon of the Brazilian Constitutional Law. The creation of said category implies the delimitation of its elements for their characterization and application in later cases. Thus, as a scientific method, the article intends to perform a dogmatic analysis of the elements that make up the identification of an SUA, according to the decision taken by the Federal Supreme Court (FSC). The dogmatic study proceeded from a description of its constitutional contours, that is, the requirements for the declaration of the ECI and its characteristics, to then challenge the constitutional characterization of the category under consideration and to highlight the mobilization of the FSC justices in order to limit its applicability only to the case of the prison system. The study concludes that the dogmatic categorie is problematic from the point of view of its argumentative coherence and its application will be restricted to the case of the Brazilian prison system.