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Supreme judicial law? Admissibility, limits and impacts of the creation of law by the Brazilian Supreme Court (STF) in the Brazilian legal system

Grant number: 15/14080-1
Support type:Scholarships in Brazil - Post-Doctorate
Effective date (Start): September 01, 2016
Effective date (End): April 01, 2018
Field of knowledge:Applied Social Sciences - Law - Public Law
Principal Investigator:Luís Virgílio Afonso da Silva
Grantee:Pedro Scherer de Mello Aleixo
Home Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The legal admissibility, the limits and the impacts of the judge-made law brought by the brazilian Supreme Court (STF) into its system's legal hierarchy haven't been sufficiently and appropriately analyzed in the national theoretical and practical discourses. Due to this analytical deficit, concealment of the normative innovations produced by the STF, blurring of the competence requirements that need to be fulfilled in order to validly introduce those innovations in the legal system and lack of assumption of the corresponding decisionmaking responsibility prevail within the interpretive-applicatory realization of the law by the highest court. Against this background, essential normative assumptions on which the system rests find themselves threatened: rule of law, democracy, separation of powers and allegiance to the Constitution. The methodologies developed to guide and control the interpretive-applicatory realization of the law - which are decisive in order for the institutional development of a legal and political community not to run towards the consolidation of an oligarchic judicial State - must address with transparency the allocation of the power to introduce new normative contents in the legal order through the different sources recognized by it. Thereby, the innovative normative action guided and controlled by these methodologies will be able to be attributed with sufficient accuracy to the respective government agents - constituents of the system's sources - in a manner that precisely reflects the role played by each one of them with reference to the creation of those contents. The achievement of this goal - especially regarding judge-made law - faces, nevertheless, numerous obstacles. Many of these obstacles lie rooted in problems related to the theory of law. They should be brought to surface and more carefully analyzed than has occurred to date. After all, there is hardly anything as dangerous to freedom as the exercise of cryptic powers and disguised authority.