JOURNAL OF INSTITUTIONAL STUDIES

POLYVOCAL CONSTITUTIONALISM AND INSTITUTIONAL DIALOGUES

2025-09-06T17:03:08-03:00

The current editorial presents a new number and wishes a good read, inviting readers to reflect on institutional theory based on polyvocal constitutionalism, institutional dialogue, and the idea of responsive judicial review.

CONTROLLED TRANSITION AND AUTHORITARIAN CONSTITUTIONALISM IN MOROCCO (2011-2025)

2025-09-06T18:51:25-03:00

This article analyses the gap between formal constitutional design and actual institutional behaviour in Morocco following the adoption of the 2011 Constitution in the context of the Arab Spring. Through the analysis of specific cases such as the management of the 20-F Movement demands, the 2016-2017 governmental crisis, the Rif Hirak (2016-2018), the 2018 economic boycott, and diplomatic normalization with Israel (2020), it demonstrates how formal institutions have been instrumentalized to perpetuate authoritarian structures under a democratic facade. The study is grounded in the theoretical framework of neo-institutionalism and hybrid authoritarianism, developing the concepts of "controlled transition" and "institutionalized authoritarianism" as analytical categories to understand authoritarian survival strategies in contexts subject to democratizing pressures. The analysis reveals the paradox of reform without change, where apparently liberalizing institutional modifications paradoxically reinforce monarchical control. The Moroccan case evidences the specificities of contemporary Arab monarchical authoritarianism and its sophisticated mechanisms of institutional adaptation.

CONSTITUCIONALISMO DEMOCRÁTICO E REVISÃO JUDICIAL RESPONSIVA NO BRASIL

2025-09-06T17:18:02-03:00

DO WE NEED A REGULATORY WATCHDOG?

2025-09-06T18:52:03-03:00

The article discusses the role of regulatory oversight bodies (ROBs), in the light of the reference literature and based on the practical experiences of the United States and Brazil. It analyses the institutionalization of the regulatory oversight activity of US agencies carried out by the Office of Information and Regulatory Affairs (OIRA) and the Government Accountability Office (GAO), as well as, in the case of Brazilian regulatory agencies, by the Secretaria de Acompanhamento Econômico (SEAE) and the Tribunal de Contas da União (TCU). It describes the institutional design of these bodies and entities and presents data from the empirical literature review. It was found that SEAE and TCU cannot be classified as ROBs in Brazil, according to the institutional designs examined, since, among other aspects, they do not act in the inter-institutional coordination of agencies, as facilitators of processes or organizers of information. The conclusion presents considerations on the advantages of institutionalizing a regulatory oversight body in the country, as recommended by the Organization for Economic Cooperation and Development (OECD).

THE SAFE CHILDHOOD TASK FORCE PUBLIC POLICY (PARANÁ)

2025-09-06T18:51:57-03:00

The Task Force Safe Childhood (FORTIS) is an innovative public policy aimed at preventing and combating violence against children and adolescents. It was implemented in the state of Paraná in 2019 and ran until 2022. It was composed of joint, integrated and articulated actions by the executive branch, other public government bodies and civil society institutions. The aim of this article is to present its legal and institutional aspects using Bucci's Reference Framework for Analysing Public Policies (2015). It highlights the importance of Law No. 13,431/2017, which highlights the "System for Guaranteeing the Rights of Children and Adolescents who are Victims or Witnesses of Violence" as a normative basis for the formulation of FORTIS' actions and their inclusion on the government agenda. Methodologically, it consists of exploratory, qualitative, bibliographical and documentary research. The Reference Framework, as a theoretical tool, made it possible to identify the limits of this public policy and understand its structure and internal organisation from a legal perspective. It is suggested that the research be deepened, for example through interviews with FORTIS course students and with governmental and non-governmental actors who took part in its formulation and implementation. It is also recommended to analyze the child and adolescent policy implemented since the establishment of the State Commission for Combating Violence against Children and Adolescents in the state of Paraná, regulated by Decree No. 12,599 of November 10, 2022.

CHALLENGES FOR THE REALIZATION OF HUMAN RIGHTS IN BRAZILIAN SOCIAL SECURITY LAW

2025-09-06T18:51:52-03:00

The Special Federal Court, created with the aim of providing faster and more accessible justice, has proved to be an important tool for guaranteeing access to justice, especially with regard to social security issues. However, its structure can be faced with limitations, such as an overload of cases and a lack of resources, directly affecting the full realization of the rights provided for in the Federal Constitution. The question therefore arises: To what extent does the procedural rite adopted in the social security claims of the Special Federal Court hinder the realization of human rights in Brazil? The research was based on bibliographical research on the subject, using the categories Human and Fundamental Rights, Access to Justice, the rite of the Special Federal Courts and Legal Positivism. The conclusion is that the realization of human and fundamental rights in social security claims before the Special Federal Courts is closely linked to the interpreter's understanding of the specific case and their willingness to see them.

ON THE (IN)SUFFICIENCY OF THE CLASSICAL-CONTEMPORARY CONCEPTION OF PERSONALITY RIGHTS IN THE PROTECTION OF HUMAN PERSONALITY AND ITS DEVELOPMENT

2025-09-06T18:51:47-03:00

Personality rights seek to protect human personality and its development and are protected in the Brazilian legal system, at the constitutional level, by the principle of human dignity, and at the infra-constitutional level, by the protection adopted in the Civil Code. In this context, the following issue needs to be investigated: is the protection established by the classical-contemporary doctrine of personality rights sufficient to protect human personality in all its complexity and to protect the development of personality in a free and full manner? The general objective is to analyze the sufficiency or insufficiency of this classical-contemporary protection of personality rights in protecting human personality in all its complexity and the development of personality in a free and full manner. Specifically, the objectives are: a) to analyze the way in which classical-contemporary doctrine understands personality rights; b) to investigate the possible insufficiencies of this conception in protecting human personality and its free and full development. To this end, the article used a qualitative approach, a deductive research method and a methodology based on the technique of non-systematic bibliographic review, with the analysis of articles, books, dissertations and theses, available in physical or digital form, and the documentary research technique with content analysis, focused on the case law of the Superior Court of Justice. In the end, the results obtained demonstrated the insufficiency of the classical-contemporary theory of personality rights in the protection of personality in an integral way and the free and full development of personality.

WHO WILL DECIDE ULISSES' FUTURE?

2025-09-06T18:51:41-03:00

This article analyzes Jeremy Waldron’s critique of the connection between constitutional pre-commitments and judicial review. It begins by presenting the "hard core" of this concept, illustrated by Jon Elster through the metaphor of Ulysses and the sirens. It then explores variations of this argument, as adjusted by other constitutional theorists. Within this framework, the article examines Waldron’s critique of the foundations of this theory, which constitutes its central focus. His main objections are: (i) the notion that pre-commitments, by virtue of their democratic nature, justify judicial review is fallacious, as their initial legitimacy does not ensure that their future application will remain democratic; (ii) the abstract nature of constitutional provisions inevitably gives rise to interpretive disagreements, undermining the idea of a neutral or intentional application of pre-commitments; (iii) delegating constitutional interpretation threatens the ideal of democratic self-government, since constitutional conflicts do not involve a choice between rational and irrational decisions, but rather between equally legitimate democratic convictions—raising doubts about whether an unelected minority can impose these pre-commitments. Finally, the article highlights the problem of legitimate authority, which underlies Waldron’s critique.

LEGAL-INSTITUTIONAL ARRANGEMENTS OF ADMINISTRATIVE CONSENSUS

2025-09-06T18:51:35-03:00

This article investigates the legal-institutional arrangements that permeate leniency agreements in the Operation Car Wash, with an emphasis on the political interactions that influence their formulation, negotiation and execution. The objective is to identify and understand how these interactions shape the performance of the control agencies and the actors involved in these processes, as well as their impact on the effectiveness of the agreements. The methodology adopted is the case study of Operation Car Wash, using the mapping of legal-institutional arrangements and an interdisciplinary approach that combines Administrative Law and Political Science. The article identifies and explores five categories of political interactions: influence of economic issues, impact of media coverage, risks of abusive consensuality, overlapping of control agencies and quantification of resources. It is concluded that these factors impact the formulation, negotiation and execution of the agreements, so that they should be object of attention by scholars of Administrative Law.

PROTECTION OF PERSONALITY RIGHTS IN SMART CONTRACTS

2025-09-06T18:51:30-03:00

This work aims to investigate the legal implications of smart contracts in the protection of personality rights, focusing on privacy and security of personal data. The general objective is to analyze how these contracts, based on blockchain, impact the protection of fundamental rights, already in the specific: (i) identify the applicability of traditional contractual principles in the context of smart contracts, (ii) understand the relationship between the General Data Protection Law (LGPD) and smart contracts, (iii) demonstrate possible legislative gaps and propose solutions to ensure legal certainty. The methodology used refers to a bibliographical and documentary research, using the exploratory and qualitative method. As a research problem, it is discussed how smart contracts can impact the protection of personality rights, particularly with regard to privacy and personal data processing. In this scenario, the present research is justified by the need to harmonize technological innovations with the basic principles of civil law, protecting the parties against possible abuses or legal gaps. It is concluded that, although smart contracts offer efficiency and security, adequate regulation is fundamental to ensure the protection of the rights of the parties involved.

JURISDIÇÃO CONSTITUCIONAL RESPONSIVA NO SUPREMO TRIBUNAL FEDERAL

2025-09-06T18:51:19-03:00

Este artigo examina o escopo da jurisdição constitucional responsiva no Supremo Tribunal Federal (STF). Empregando uma metodologia baseada na análise de jurisprudência e na exploração doutrinária crítica, o estudo primeiramente avalia a aplicabilidade das categorias e remédios da jurisdição constitucional responsiva à jurisprudência do STF. Essas categorias incluem inércia legislativa, pontos cegos legislativos e poder monopolista antidemocrático. Em seguida, o artigo explora os remédios e técnicas do STF alinhados a essas categorias, com foco em decisões interpretativas e dilatórias, particularmente o uso da interpretação conforme a constituição e declarações de inconstitucionalidade sem pronúncia de nulidade. A discussão é enquadrada na dinâmica política do período de 2018 a 2025, marcado por tentativas de ruptura democrática e antidemocrática. O artigo conclui que o STF exerce poderes corretivos significativos para lidar com a disfunção democrática, operando dentro da estrutura da jurisdição constitucional responsiva.

RESPONSIVE JUDICIAL REVIEW, PROPORTIONALITY, AND CALIBRATED SCRUTINY IN BRAZILIAN JUDICIAL PRACTICE

2025-09-06T18:51:15-03:00

This paper examines the feasibility of implementing the model of responsive judicial review, proposed by Rosalind Dixon, in Brazilian constitutional practice. The theory of responsive judicial review proposes a variation in the intensity of judicial scrutiny according to the degree of democratic dysfunction present in each case. In view of this, the paper explores the potential benefits and challenges involved in adapting the proportionality test – which is currently the prevalent model of rights adjudication in Brazil – to explicitly incorporate variation in the level of scrutiny. It is argued that such an initiative could strengthen Brazilian courts’ ability to respond appropriately to threats to democracy without undermining the rationality of its decision-making. However, the article also identifies significant obstacles: (a) the weak and inconsistent application of the proportionality test in its current form, (b) the lack of a tradition of calibrated scrutiny in constitutional law and the challenges already observed in its application within administrative law, and (c) institutional limitations to implementing complex decision-making models, such as the judiciary’s high caseload. The article concludes that adopting a hybrid model in Brazil would require not only methodological and institutional improvements, but possibly also broader changes in the country’s legal culture.

PRECEDENTS AS A FOUNDATION FOR RESPONSIVE CONSTITUTIONAL REVIEW

2025-09-06T18:51:09-03:00

The contemporary phenomenon of democratic erosion promoted by autocratic leaders places constitutional courts in a complex position: they must simultaneously preserve their institutional legitimacy and actively defend the democratic regime. This article investigates how consistent jurisprudence, based on solid precedents, can strengthen courts' capacity to exercise responsive constitutional review without compromising their social credibility. Thus, it argues that Rosalind Dixon's theory of responsive judicial review can be enhanced through the systematic use of precedents, creating a theoretical framework that reconciles democratic adaptability with legal stability. The investigation articulates responsive judicial review theory with stare decisis principles, proposing that systematic precedent observance grants courts greater legitimacy to intervene in situations of democratic threat. Finally, it analyzes the Brazilian case during the Bolsonaro government to illustrate both the potential and limits of this approach in civil law systems. Analysis of the Brazilian case reveals significant paradoxes: while the Supreme Federal Court managed to partially resist the Bolsonaro government's authoritarian advances, previous inconsistencies in precedent usage (particularly regarding imprisonment after second-instance conviction) weakened its institutional legitimacy. The work concludes that well-structured precedents constitute an essential instrument for balancing democratic responsiveness and legal stability, but civil law systems face specific challenges in consolidating this culture. Thus, the article contributes to the debate about the limits and possibilities of defensive constitutionalism in contexts of democratic backsliding.

THE BRAZILIAN FEDERAL SUPREME COURT AND ITS UNDERSTANDING OF THE AMICUS CURIAE

2025-09-06T18:51:04-03:00

This article examines the evolving role of the amicus curiae within the Brazilian Federal Supreme Court (STF), highlighting its potential to foster responsive judicial review as proposed by Professor Rosalind Dixon. The institution of the amicus curiae, recognized in Brazilian law by the Code of Civil Procedure and specific STF regulations, aims to enhance judicial deliberations through external contributions. However, the Court's restrictive practices—such as the non-appealability of decisions rejecting amicus curiae requests, the exclusion of natural persons from participation, and the prohibition of clarifying motions (embargos de declaração) by amici—often undermine its democratic and cooperative potential. These limitations reflect a broader tension between procedural rigor and the Court's capacity to adopt a pluralist form of judicial review. Drawing on international frameworks, especially Professor Dixon's theory of responsive judicial review, this study emphasizes the need for the Court to adopt more inclusive practices. A model of responsive judicial review requires courts to be open to diverse perspectives, rigorously observe legal norms, and maintain a firm commitment to democratic principles. The article proposes specific reforms to address these challenges, advocating for clearer criteria for the admission of amici curiae, the implementation of more robust procedural guarantees for participation, and a systematic interpretation of existing legal provisions. By aligning its practices with constitutional principles, the STF can foster a more dialogic and democratic judicial process, thereby strengthening its institutional legitimacy. This analysis not only critiques current practices but also envisions a path for the Court to reconcile procedural rigor with the demands of a pluralistic society, ensuring that the amicus curiae acts as a true ally of constitutional democracy.

THE SPEED OF RESPONSIVE JUDICIAL REVIEW

2025-09-06T18:50:59-03:00

This article investigates the role of decisional timing as a crucial dimension of responsive judicial review, focusing on the Brazilian Supreme Court's (STF) actions during the Bolsonaro administration (2019-2022). It argues that controlling when to decide is as critical as the substantive outcome for courts facing democratic erosion. The analysis centers on a comparative study of two similar cases (ADPFs 622 and 623) that challenged presidential decrees aimed at reducing civil society participation in federal councils. Despite their similarities, the cases had drastically different timelines (528 vs. 1343 days), primarily due to the strategic use of procedural tools like requests for review (pedidos de vista) by a single justice. The study finds that while the fragmentation of agenda-setting powers among justices creates vulnerabilities for delay tactics, individual powers like monocratic injunctions can also be used strategically to counteract such obstruction. The conclusion emphasizes that effective responsive judicial review requires not only a pro-democracy majority but also institutional control over timing to prevent internal sabotage and ensure timely rulings against authoritarian practices.

MISSING VOICES

2025-09-06T18:50:53-03:00

The article examines the theory of Responsive Judicial Review (RJR), developed by Rosalind Dixon, and its applicability in the Brazilian context, with an emphasis on the appointments and composition of the Supreme Court (STF). The text confronts RJR with challenges posed by local reality: the persistence of historical inequalities, the low level of diversity in the judiciary, the politicization of appointments, and a deficit of accountability. Describing the relationship between appointment mechanisms, independence, and diversity, the analysis emphasizes that, at a time when the STF faces growing public dissatisfaction with its actions, it lacks the tools for practice of responsive judging, failing in the task of pluralizing itself and of varying the tone, authorship, and narrative of its decisions. The current social, racial, gender, and regional homogeneity of the Court’s composition constrains its ability to implement RJR, but the theory can nonetheless serve as a normative ideal for improving and legitimizing the Court.

RESPONSIVE SUPERIOR ELECTORAL COURT?

2025-09-06T18:50:48-03:00

This article examines the judicial strategies adopted by the Brazilian Superior Electoral Court (TSE) both inside and outside the courts during the 2019-2022 electoral cycle. Using Rosalind Dixon's "Responsive Judicial Review" as a theoretical framework, we assess whether the TSE's response to attacks on the electoral system can be characterized as responsive. The article answers this question in four steps. First, we characterize the judicial model of electoral governance, which concentrates the roles of adjudication, rulemaking, and administration of national elections in the TSE, as a precondition that establishes a toolkit to be mobilized by judicial actors. Second, we describe the attacks from the governing coalition on the electoral system, particularly the repeated and evidence-free accusations of fraud in the electronic voting system, as measures that attack the "democratic minimum core" and consolidate risks of political power monopoly and the elimination of institutional checks and balances. Third, we present, as an example of the TSE's responsive judicial decision-making, the interpretive choice that limited the freedom of expression of political agents and defined the act of discrediting the electoral system as an electoral crime. Fourth, we present, as an example of the TSE's extrajudicial action, the implementation of two successive programs during the presidencies of Ministers Roberto Barroso and Edson Fachin to build external support for the TSE and the electoral system within civil society and the international community. We conclude by outlining the contours of the TSE's responsive action and asserting how the Brazilian example demonstrates that the theory of judicial responsiveness can extend beyond the courts' traditional role in judicial review, even reaching the role of judges acting outside the courts to protect democracies under threat from authoritarian projects.

WHO WANTS TO BE A FOURTH ESTATE?

2025-09-06T18:50:42-03:00

This article investigates the process of an institution's "self-construction" as a Fourth Branch of government, arguing that beyond the formal constitutional design (an external perspective), there is an internal institutional agency that actively seeks this recognition. Using the Brazilian Federal Court of Accounts (Tribunal de Contas da União - TCU) as a case study, the text demonstrates how this self-construction operates on two fronts: during the constituent process, through the advocacy of a favorable institutional design, and in post-constitutional practice, through an expansive interpretation of its competences. The analysis of the TCU's preliminary review of unpublished public concession bids illustrates how the institution, based on a constitutional hermeneutics that invokes implied powers and the construction of internal capacity, consolidated a competence not explicitly provided for in the Constitution. The article concludes that recognition as a Fourth Branch is a dynamic process, dependent not only on normative entrenchment but also on an active "institutional will" and the acquiescence of other actors with veto power.