Legal Aid and the State of Exception: A study on Goiás and the institutional barriers to access to justice∗

• DOI: https://doi.org/10.22533/at.ed.216542520029

• Palavras-chave: State of Exception. Legal aid. Access to Justice. Homo Sacer. Abuse of Power

• Keywords: State of Exception. Legal aid. Access to Justice. Homo Sacer. Abuse of Power

• Abstract:

  This work addresses the problem of the state of exception in the Brazilian judicial context, focusing on the arbitrary denial of legal aid as a barrier to access to justice. Based on the theories of Giorgio Agamben, especially in his works State of Exception and Homo Sacer, it analyzes how judicial practices distort legal interpretation, creating obstacles that limit the fundamental right to access the judiciary. Despite the fact that Brazilian legislation establishes that the granting of free  aid should be presumed upon a simple declaration of need, there is a trend towards arbitrary rejections based on subjective criteria and disproportionate requirements, such as the request for non-existent documents. Using a methodology of bibliographical review, analysis of case law and empirical research into perceptions of the judiciary, this study identified judicial practices which, by excluding the most vulnerable, constitute an informal state of exception. The relationship between the denial of legal aid and the concept of Homo Sacer showed how such practices create "zones of exclusion", depriving individuals of their basic rights. The conclusion is that these barriers compromise the principles of equality and dignity, reinforcing the need for institutional reforms to guarantee the effective application of the right to free legal aid and the strengthening of the rule of law.