Amicus curiae entre endo e perilegitimação jurídica: um estudo de caso da ADPF n.º 186/DF

Abstract

The contributions of amici curiae in public hearings took on the objective of making the judicial debate more plural in the scope of judicial review and beyond (Häberle, 1970). In Brazil, the Federal Supreme Court started to hold more and more public hearings, assuming that its legitimacy can be reinvigorated by the participation of these new procedural subjects who send contributions and make oral arguments. Literature points out that the democratic legitimation of constitutional jurisdiction instrumentalized in this way has expanded (Agra, 2005; Aguiar, 2005; Bueno, 2008; Carneiro, 2008; Didier Jr., 2009; Del Prá, 2008; Medina, 2010), but, objections can be raised to the current model adopted in Brazil. It is important to know, for example, whether in their decisions the ministers of the STF mention the contributions of the amici curiae in public hearings. In this context, the present study aims to analyze and describe whether, in light of ADPF no. 186/DF, the amicus curiae and public hearings constitute instruments of legitimization of the legal system. In order to do so, it intends to answer the following question: in light of the final decision on merits contained in ADPF n.º 186/DF, it is possible to affirm that the performance of the amici curiae and the holding of public hearings can promote the legitimacy of the jurisdiction assumed by the Supreme Court Federal and by doctrine? Faced with this issue, the following hypothesis was formulated: the STF, in ADPF no. 186/DF, by holding public hearings and allowing amici curiae to speak, promotes legitimization through the procedure (Luhmann, 1980). About the methodology, the present research is empirical, qualitative, interdisciplinary and will be developed from the functional comparison (Luhmann, 2006; 2016) as approach method was chosen the case study (ADPF n.º 186/DF), in addition to data collection techniques for content analysis (Bardin, 1977) and literature review, jurisprudence and legislation. The innovative nature of this research consists of the theoretical formulation, based on empirical research, of legal perilegitimacy, in addition to the scientific, lobbying and legitimizing services (and their criteria of distinction: criteria of irritation, irritant and impartiality), and the provocative function of the structural coupling formed by amici curiae. In addition to these innovations, it is possible to mention others: this investigation uses empirical research to develop the theoretical framework of systems theory; public hearings were observed as procedures and systems of interaction; amici curiae were initially observed as operative couplings and, later, with the evolution of the legal system, as structural couplings of the legal system with other autopoietic systems (science, politics, education, social movements, etc.); and that from the variation and contingency that they provide in their action, they attract the STF from the center of the legal system to the periphery, which makes it more permeable to the innovations proposed by heteroreferential argumentation, making legal perilegitimation possible.