The State of Unconstitutional Affairs of Colombian Origin and the Dialogical Posture in Constitutional Jurisdiction in Structural Injunctions: ADPF 347 as a Brazilian Reference Mark

Abstract

The judgment on the merits of APDF 347 was highly expected in Brazil. The preceding decision on the precautionary measure in 2015 had introduced the concept of “state of unconstitutional affairs” (ECI) in Brazilian jurisprudence. Originally a concept of the Colombian legal system, the Court had not fully developed how it would be effectively integrated into Brazil’s legal system. The judgment on the merits of APDF 347 fills this gap. This article investigates how the Federal Supreme Court appropriated and adapted this legal concept to fit the Brazilian context. Furthermore, it reflects on the structural implications of the judgement, especially regarding in its stipulation of a monitoring phase by the Judiciary. We show how the Court fleshed out the conditions for the declaration of an ECI and how the decision’s monitoring will occur, amid the proposal of an institutional dialogue with the other Branches of Power.

Keywords: Dialogical Activism, Transformative Constitutionalism, State of Unconstitutional Affairs, Brazilian Federal Supreme Court, Structural Injunctions