THE FUNDAMENTALS OF THE THEORY OF THE UNCONSTITUTIONAL STATE OF AFFAIRS: FROM (I)LEGITIMACY TO APPLICATION IN BRAZIL

• DOI: 10.22533/at.ed.216312301011

• Palavras-chave: Judicial activism. Comparative law. Fundamental rights. Structural Sentences.

• Keywords: Judicial activism. Comparative law. Fundamental rights. Structural Sentences.

• Abstract:

  The Federal Supreme Court, through the Action of Non-compliance with Fundamental Precept number 347, elaborated by the Socialist and Freedom Party, addresses for the first time in the Brazilian constitutional jurisdiction the so-called “State of Unconstitutional Things”. The institute originated in Colombia, in 1997, which, through its Constitutional Court, recognized the serious violation of the human rights of imprisoned citizens, with a patent omission by the State. For the development of this work, the deductive method of approach was adopted, combined with the monographic and historical procedure. For the development of the research, initially, the concept, origin and assumptions of the Unconstitutional State of Affairs are addressed, and an analysis of the sentences that applied the institute across the globe, through comparative law. It also seeks to analyze the ideas of Owen Fiss. It concludes by presenting perspectives on the institute in question, affirming its legitimacy in Brazil.