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- Title
O ESTADO JURISDICIONAL COMO OPERADOR DA EXCEÇÃO INTERPRETATIVA SOBERANA.
- Authors
de Moura Costa Matos, Andityas Soares; Grossi Gangana, Danton Fillipe
- Abstract
The present essay is an analysis of how the Judicial Branch acts as an operator of the state of exception, as defined by Giorgio Agamben, mainly through the interpretative tradition, that regains a certain protagonism with neoconstitutionalism. The work shows how interpretation suspends the legal order and produces norms in the anomic void. Considering the multiplicity of authors, the analysis was limited to Robert Alexy's ponderation and proportionality techniques, mainly due to the importance of his theory. The methodology consisted of a previous bibliographic review of the theoretical frameworks (Agamben, Alexy, García Amado and Schmitt) and later the analysis of two important recent Brazilian Supreme Court's decisions, Habeas Corpus n° 126,292 and n° 141.949. Through this analysis, it was demonstrated how the Judiciary, through legal interpretation, assumes the function of operator of the state of exception, declaring the partial or total suspension of the legal order and producing exceptional norms in the anomic field. The work contributes with the criticisms made to the interpretative techniques, demonstrating the antidemocratic power of this one, also presenting a relation between state of exception and legal interpretivism that can be developed and applied in other essays.
- Subjects
AGAMBEN, Giorgio, 1942-; OPERATOR functions; LEGAL judgments; APPELLATE courts; HABEAS corpus; MULTIPLICITY (Mathematics)
- Publication
Quaestio Iuris (QI), 2020, Vol 13, Issue 4, p1829
- ISSN
1807-8389
- Publication type
Article
- DOI
10.12957/rqi.2020.45898