Guardian and Jurisprudence of Exception: Perspectives for a Pragmatic-Systemic Observation of Judicial Decision

Abstract

The theme of exception and its relationship with authoritarianism has recently sparked intense debates in the legal sphere. Using a pragmatic-systemic methodology, with empirical jurisprudential observation of cases in the Supreme Federal Court that involve the terminology of exception, this study aims to address its contemporary relevance in the Brazilian context. It references emblematic cases in the Supreme Federal Court, such as Inquiry No. 4,781 (the Fake News Inquiry) and Action for Noncompliance with a Fundamental Precept No. 572/DF, to revisit the problematization of the limits and meanings of decision-making power in light of the jurisprudence of exception. From a systemic perspective, exception is perceived as an evolving semantic construct that enables the functional differentiation of law within society, reflecting the historical prohibition of non liquet. In this context, the Supreme Federal Court can be observed as the "Guardian of Exception in the Legal System," not in a critical or negative sense, but in terms of its pragmatic-systemic role in preserving functional autonomy and social differentiation. This complements its essential function as the "Guardian of the Constitution.". The hypothesis is that the prohibition of non liquet and the exception represent two sides of the organizational-functional distinction of contemporary law and that the improbability of legal communication is circumvented by judicial communication of exception. Courts, therefore, only free themselves, have freed themselves, and will continue to free themselves from constraints if they recognize the constant need and freedom to decide in light of situations in which the legal system allows for the unfolding of exception.