Por uma crítica ao conceito de interna corporis no direito político brasileiro

Abstract

The research presents a critique of the concept of interna corporis in Brazilian Political Law. To do so, it starts from the records of the uses and studies of the concept and portrays the spread of critiques of its use as an obstacle to the judicial review of the acts of the Legislative Branch. The interna corporis acts doctrine is contextualized from the 1988 Constitution and the phenomena of judicial activism and the judicialization of politics, constellations of Political Law that stimulates controversies about the legitimacy of the control exercised by the Judiciary. Situates the expansion of the critique of the concept of interna corporis in Brazilian law, its influences, premises, doubts and implications. The theoretical framework of the Due Legislative Process contributes to the rise, enabling the critique of the concept of interna corporis with a democratic justification of the judicial review of acts of the Legislative Branch. Through the history of concepts, the history contained in the concept of interna corporis is unveiled and shows the layers of its formation, meanings, transformations, and above all polemics, as a key-concept, inevitable for the political vocabulary. The antecedents of Brazilian constitutionalism are examined in a critical perspective since the disputes over the meaning of the Constitution and judicial review. Afterwards, the origins and senses of the interna corporis concept are described, until his arrival as subject of Political Law, as well as the circumstances of its appearance and spread in Brazil. The jurisprudence of the Federal Supreme Court about judicial review of interna corporis acts reveals more discontinuities than developments, and the conceptual disputes regarding its role in the news of the last century emphasize the objections. Finally, it locates the current concept in the jurisprudence of the Federal Supreme Court in the most restricted version: minimum of appreciable matters and parameters and maximum characterization of interna corporis matters. It proposes a critique of the concept in Brazilian Political Law, confirms the deepening of the problems pointed out by the previous literature, supports the need for overruling precedents and suggests other mechanisms of judicial review of the acts of the Legislature in order to open the eligibility to the guarantee of the Due Legislative Process. The critique attests the failure of imposing limits on jurisdictional exam through dubious, incoherent, imprecise and unpredictable standards. Given the state of the art, the consecration of the interna corporis acts doctrine in national jurisprudence is harmful to the rule of law and jeopardizes the foundations of constitutional democracy.