Proibição do non liquet e exceção: premissas para uma observação pragmático-sistêmica

Abstract

The exception remains mysterious within the scope of legal discussions. In this research, we will tackle the challenge of evaluating it by questioning the possibility of examining it from the perspective of autopoietic social systems theory and its particularities in relation to judicial decisions. Indeed, we particularly consider its potential in the current Brazilian context, at least since the incidents in the "jurisprudence of exception (the exception in jurisprudence)" in the Federal Supreme Court, especially concerning Inquiry No. 4.781 (the Fake News Inquiry) and the Action of Non-Compliance with a Fundamental Precept No. 572/DF. These cases have intensified debates about the limits and meanings of decision-making power concerning exceptions. Therefore, we observe and revisit the forms of judicial communication that directly deal with exceptional situations, engaging with theoretical and practical debates proposed for these discussions, especially through the investigative contributions of Giorgio Agamben and Carl Schmitt. This approach allows for reinterpretations based on autopoietic social systems theory and its pragmatic-systemic reinterpretation.Thus, through a pragmatic-systemic methodology, particularly anchored in empirical jurisprudential observation from the selection of cases in the Brazilian Federal Supreme Court that refer to the terminology of exception, we demonstrate the possibility of identifying the crucial exceptionality that shapes the function and position of courts within the legal system. It is understood that in moments of high irritation, the “experience of exception” (Ausnahmestellung) implied makes it possible for the paradoxical indetermination to be conjectured as decisive determination. The pragmatic-systemic matrix, therefore, allows for a different observation of a series of entrenched issues in the contemporary legal debate on this theme.We primarily revisit the opposition between a decisionist stance called judicial activism and another basically conservative stance known as constitutional dogmatism. We propose to surpass these definitions through a second-order observation that distinguishes the exception as a key element for the communication and consequent evolution of law under conditions that ensure stabilization. Consequently, under a systemic lens and in our conception, the exception is an evolving semantic acquisition that enables the legal functional differentiation of society, at least since the historical assertion of the prohibition of non liquet. In this way, the exception, decision-making, paradoxes, and the process of deparadoxification (Entparadoxierung) operate in a continuous and intrinsically interconnected manner within the functional differentiation of law in society.In this sense, we reposition the Brazilian Federal Supreme Court as potentially identifiable as the "Guardian of the Exception in the Legal System." This title should not be perceived negatively or critically, as is often emphasized, but rather to observe its pragmatic-systemic role in preserving functional autonomy and social differentiation, alongside the already essential role as the "Guardian of the Constitution." The proposal is that the prohibition of non liquet and the exception appear as the two sides of the organizational-functional differentiation of current law. The improbability of legal communication is circumvented by the judicial communication of the exception.