Journal of Law and Jurisprudence – Court of Justice of the State of Santa Catarina

The Judiciary and the Legacy of Schmitt, Kelsen, and Heller for Contemporary Democracies

Marco Augusto Machado Ghisi — 2025-08-21

This article examines the enduring relevance of Carl Schmitt, Hans Kelsen, and Hermann Heller’s contributions on political power, constitutional adjudication, and democratic legitimacy during institutional crises. Using the Weimar Republic as a historical laboratory, it explores how these three theoretical perspectives, despite being rivals, continue to inform contemporary dilemmas faced by democracies under threat from authoritarian populisms, intense polarization, and institutional weakening. It argues that Kelsen's normativist model, even with its formal insufficiencies, constitutes a more solid barrier against the regression of democracy than Schmitt's decisionist conception, whose rhetorical allure continues to influence authoritarian models disguised as legality. Empirical analysis of experiences in the United States, Brazil, Hungary, and El Salvador reveals that the exception, when converted into ordinary government practice, compromises the foundations of constitutionalism. Heller’s alternative, based on a social theory of the Constitution, although conceptually promising, encounters concrete obstacles in contexts with reduced civic culture and low institutional density. The methodology combines hermeneutic interpretation of primary theoretical sources with a comparative study of relevant jurisprudence, aiming to identify parameters capable of guiding institutional responses compatible with the protection of the constitutional pact.

The Cooperative Model and the Brazilian Code of Civil Procedure: Notes on the Jurisdictional Function Through the Lens of Procedural Cooperation, Ten Years After Its Enactment

João Bastos Nazareno dos Anjos — 2025-06-26

Objective: This study aims to analyze the conduct of judges within the cooperative model of civil procedure in Brazil, particularly after the enactment of the 2015 Code of Civil Procedure (CCP). It focuses on the structural changes brought by the CCP concerning the allocation of procedural duties and examines how the jurisdictional function operates within this framework. Special attention is given to the cooperative duties assigned to judges and their interpretation by higher courts after a decade of the CCP’s implementation.

Methodology: The research employed a qualitative approach, using the inductive method during the exploratory phase to identify theoretical foundations and the Cartesian method during the analytical phase to process and interpret the data. The logical structure of the text was guided by inductive reasoning, aiming for coherence between theoretical insights and jurisprudential developments.

Results: The study finds that the 2015 CCP significantly reshaped the distribution of roles in civil procedure. While judicial protagonism in dispute resolution remains inadmissible, judicial passivity is likewise impermissible. Case law from higher courts reinforces the expectation that all procedural actors, including judges, must adopt a cooperative posture to ensure procedural fairness, efficiency, and timely decision-making. The cooperative model thus redefines the judge’s role, balancing initiative with restraint.

Conclusion: The cooperative model instituted by the 2015 CCP represents a paradigm shift in Brazilian civil procedure. However, its effective implementation depends on the internalization of cooperative duties by all judicial actors. The analysis concludes that despite advancements in jurisprudence, challenges remain in harmonizing theoretical ideals with procedural practice, particularly regarding the judge’s active-yet-impartial role.

Active transparency: A study of the electronic portals of medium-sized state courts in Brazil

Patrick Jonathan Lima da Silva — 2025-04-17

Objective: This study aims to analyze the compliance of medium-sized courts in Brazil with active transparency standards established by national legislation, taking into account the gaps identified in previous studies on both active and passive transparency. Specifically, it evaluates adherence to Resolutions No. 102/2009 and No. 215/2015 of the National Council of Justice (CNJ).

Methodology: A descriptive, quantitative research design was adopted, focusing on medium-sized courts as classified by the CNJ in the 2022 edition of the Justice in Numbers report (base year: 2021). Data were collected through systematic observation of the official websites of each court, using a structured script to assess the degree of compliance with legal transparency requirements.

Results: All courts analyzed failed to comply with at least two of the evaluated criteria. A 20% decrease was observed in institutional transparency, and a 13.5% decrease in remuneration disclosure. Conversely, there was an 8.7% improvement in budgetary and financial transparency, a 46.8% increase in social instruction transparency, and a 36% increase in compliance with open data criteria. These findings point to persistent shortcomings such as formalism, lack of openness in public documents, and limited adherence to open data standards.

Conclusion: The lack of standardization in digital systems across courts hampers machine processing, content indexing, and data reuse. The study concludes that the Brazilian Judiciary is still progressing slowly in implementing transparency practices that align with constitutional and legal mandates.

Use of Artificial Intelligence by the Judiciary and the Legality of Resolution n. 615, of March 11, 2025, of the Brazilian National Council of Justice

Gian Carlos Spohr — 2025-08-07

This article examines the use of artificial intelligence within the Judiciary, with emphasis on Resolution n. 615/2025 of the National Council of Justice. The main objective is to determine whether this regulation infringes the principle of legality by governing the use of generative artificial intelligence in the Judiciary. The specific objectives are: (i) to define artificial intelligence; (ii) to contextualize the principle of legality; and (iii) to present the main aspects of the Resolution under analysis. Methodologically, the study employs a deductive method with a qualitative approach, based on a literature review including books, scientific articles, and legislation. The findings indicate that the regulation established by Resolution n. 615/2025 does not violate the principle of legality, provided its parameters are strictly observed, particularly the requirement of human oversight in the use of artificial intelligence.

Effective Access to Justice and Algorithmic Discrimination: The use of Artificial Intelligence by the Judiciary

Ana Carolina Oliveira Sousa — 2025-08-18

Objective: To analyze how the absence of an intersectional perspective in artificial intelligence (AI) systems employed by the Judiciary affects the realization of the fundamental right to effective access to justice, with particular attention to the risks of algorithmic discrimination.

Methodology: The research adopts textual content analysis as its methodological approach, supported by the theoretical frameworks of intersectionality and effective access to justice. The examination focuses on the interplay between structural inequalities and AI-based decision-making within judicial systems.

Findings: The study highlights that algorithmic discrimination, resulting from the uncritical adoption of AI tools in adjudication, reproduces social inequalities based on race, gender, class, and other markers of difference. The lack of intersectional awareness in these systems compromises the quality and legitimacy of judicial decisions, undermining the principle of equal treatment before the law.

Conclusion: Algorithmic discrimination is incompatible with the guarantee of effective access to justice. Its mitigation requires the incorporation of an intersectional perspective into AI-assisted judicial practices, ensuring that technological innovations strengthen, rather than weaken, democratic access to fair adjudication.

PERIODIC COURT APPEARANCES MEDIATED BY ARTIFICIAL INTELLIGENCE SYSTEMS: a proposal

Mauro Ferrandin — 2025-08-07

The research aims to propose that periodic appearance in court, in the various meanings of the institute, be mediated by Artificial Intelligence Systems. The hypothesis is that, in addition to reducing the stigmatization of the investigated/accused/convicted, the use of these systems could positively impact communication, monitoring and efficient compliance with criminal court decisions that require the presence of the obligated party in court. The research is justified insofar as it is necessary to overcome the obsolete legal instrument of physical appearance in court (with analog documentary record) for models facilitated by high-tech Artificial Intelligence systems, which can operate facial biometric reading; instantaneous location of the user or even delimit the space to which he/she must remain confined, which can be done via georeferencing. The inductive method is used in the investigation and production phase of the research report; in data processing, the Cartesian method is used; to verify the results, inductive logic is used. Regarding the methodology, the research uses bibliographical research and official data.

Paradoxo da Inovação Tecnológica e a Inovação Inclusiva para Promoção do Desenvolvimento

Mário Junio Gonçalves dos Santos — 2025-08-07

O presente artigo analisa a relação entre inovação tecnológica e desenvolvimento sob uma perspectiva jurídica e social. Apesar dos avanços tecnológicos, persistem desigualdades sociais e regionais, desafiando a concretização do direito ao desenvolvimento. O problema de pesquisa consiste em analisar como a inovação tecnológica pode contribuir ou prejudicar a promoção do desenvolvimento, considerando as visões antagônicas de Schumpeter e Ulrich Beck. O objetivo é discutir a inovação inclusiva como um caminho para o desenvolvimento, ancorado na solidariedade. Utilizando o método dialético, o estudo contrasta benefícios e mazelas da inovação, embasado em pesquisa bibliográfica e na Constituição Federal de 1988. Conclui-se que, embora a inovação seja essencial, sua eficácia depende da distribuição equitativa de seus benefícios e da solidariedade na difusão das tecnologias.

A Natureza Jurídica Distintiva entre os Conceitos de Internet e Telecomunicações: Fundamentos e Implicações

Percival Henriques de Souza Neto — 2025-08-07

This article analyzes the legal distinction between the concepts of Internet and telecommunications, exploring their different structural, operational, and governance natures. The Internet is characterized as a decentralized network operating on open protocols, while telecommunications are traditionally centralized and regulated. The article highlights the importance of maintaining this distinction to ensure the development of the Internet as a space for innovation and freedom, while ensuring the quality and security of telecommunications services. In the context of technological convergence, it advocates for the need of coherent regulatory frameworks that recognize the particularities of each domain and promote an inclusive and innovative digital environment. The study contributes to the ongoing debate about digital governance by providing a comprehensive analysis of how these two interconnected, yet distinct technological realms should be understood and regulated in the contemporary digital ecosystem.

Reflections on Judicial Control of Public Policy Planning in Brazil:

Mariane yuri shiohara Lubke — 2025-10-14

Background: Judicial oversight of public policy planning is a controversial issue within the Judiciary, and this article demonstrates some parameters for the legitimate performance of this branch, ensuring that the division of powers within the State is not encroached upon. Objective: To analyze the hypotheses in which judicial oversight of public policy planning is justified, identifying the theoretical barriers to this possibility, the constitutional and jurisprudential foundations authorizing judicial intervention, and the criteria that can guide oversight of budgetary and structural aspects of public planning. Method: This study uses the deductive method, through a quantitative and qualitative approach. as for the procedure, it is a bibliographical research, through the review of studies and scientific articles carried out on the subject - and jurisprudential, based on the Leading case published in the Action for Non-Compliance with Fundamental Precept 45. Results: Judicial control of public policy planning does not violate the separation of powers, as long as it is exercised within the legal limits imposed by the Constitution itself, acting as a mechanism to protect against arbitrariness, omissions or deviations that compromise the implementation of fundamental rights.

Is the legal answer to climate change in the Brazilian Amazon found in the past? Portuguese considerations on Brazil’s agricultural tenancy law and its reform

Manuel David Masseno — 2025-04-17

Objetivos: Assumindo o Direito como uma tecnologia social, inclusive quanto aos contratos privados, a presente pesquisa pretende estudar as vias de adaptar os regimes aplicáveis atualmente ao arrendamento rural no Brasil aos desafios da Mudança do Clima, em especial em regiões mais vulneráveis, como a Amazônia.

Metodologia: Foram sobretudo seguidos métodos jurídicos consolidados, como o analítico, o histórico e o comparativo, com vista a identificar as alternativas mais viáveis, desde as lições aprendidas com soluções legislativas já colocadas em prática, tanto no Brasil quanto em Portugal.

Resultados: A pesquisa mostra como, sem alterações profundas do Ordenamento brasileiro relativo aos contratos agrários, ou até apenas por iniciativa das partes, é possível efetivar uma atribuição mais adequada dos riscos resultantes da Mudança do Clima.

Contribuições: Esta pesquisa abre caminhos novos, ao ir além das Políticas Públicas na adaptação das atividades económicas à Mudança do Clima, desde uma perspectiva rigorosa de Direito Privado, tendo por base as Fontes históricas do Direito Brasileiro.

TECHNOLOGICAL INNOVATION IN THE BRAZILIAN JUDICIAL SYSTEM

Leonel Cezar Rodrigues — 2025-08-07

The Brazilian Judiciary has long been seeking efficient ways to streamline the provision of legal services to society. However, in order to evolve in terms of agility and efficiency, the Judiciary needs to innovate its traditional procedures. Localized technological solutions, however, do not support the necessary integration and security. It is necessary to combine operational-based technology, such as blockchain, with generative Artificial Intelligence. In this paper, we demonstrate the validity of its use, through the main benefits of its adoption: increased productivity, lower operating costs, and benefits to society. Three functional premises are demonstrated, supporting the technological massification with blockchain and AI, as a solution for speed, procedural security, quality, and positive implications for social pacification.