Abstract
This paper is intended to investigate and examine the relationship between the Brazilian Judiciary and the state of exception from the legal-dogmatic perspective. The lawful state of exception consists of states of defense and siege, constitutionally ruled situations, within the Rule of Law. The unlawful state of exception, on the other hand, stems from the complete failure of state institutions to comply with its constitutional mission, and violates the Rule of Law. An error committed by the Judiciary is not enough to configure the unlawful state of exception, in view of the calibration rule inherent to the principle underlying res judicata. A jurisdictional error only configures a state of exception when it results from an institutional collapse of the Judiciary. The correct disclosure of implicit norms or the correct control of discretion does not constitute judicial activism, which only occurs upon disrespect to the proper exercise of discretion. Resistance to an erroneous jurisdictional act is not allowed under the Rule of Law, as a general rule. However, when a jurisdictional act constitutes a serious injustice, resistance is allowed without amounting to a breach of the existing law.
Keywords:
state of exception; Judiciary; state of defense; estate of siege; jurisdictional function