Legal competence defines the scope of functional action for state bodies, constituting a procedural prerequisite for validity and a fundamental guarantee of due process of law. Being mandatory and non-waivable in nature, competence is governed by Constitutional and Procedural Law, aiming at the equitable distribution of jurisdiction and legal certainty in the provision of judicial services.
Concept and Foundation
Competence, in the rigor of legal dogmatics, is the measure of jurisdiction. While jurisdiction is the state power to declare the law, competence is the normative delimitation of that power. It refers to the authority granted to a specific judicial body for the exercise of the public function of judging, within limits previously established by the constitutional and infra-constitutional order.
The legal nature of competence is a matter of public policy. Because it is a mandatory rule, its non-observance leads to the nullity of decision-making acts, as advocated by the Brazilian procedural system. The distribution of competence is not a prerogative of the parties, but an imposition of the State to ensure the principle of the natural judge (Art. 5, XXXVII and LIII, of the 1988 Federal Constitution), which prohibits extraordinary tribunals and guarantees the prior determination of the adjudicating body.
Historical Origin and Evolution
The genesis of competence dates back to classical state organization, gaining modern contours with Montesquieu's separation of powers. In Roman Law, the distinction between forum and competentia already aimed to prevent arbitrariness. In contemporary constitutionalism, the evolution of the institute has followed the need for judicial specialization and the protection of citizens against judicial discretion. In Brazil, the model of competence was consolidated by the 1988 Constitution, which established a rigid system of distribution, essential for the balance of the federal pact.
Legal Provision and Structure
The Brazilian legal system structures competence through objective criteria: material (nature of the case), functional (degree of jurisdiction or stages of the process), and territorial. The 1988 Federal Constitution defines the competence of superior courts and federal justice (Arts. 102 to 109). The 2015 Code of Civil Procedure, in its Arts. 42 to 66, establishes the rules of internal competence, with emphasis on the modification of competence and absolute and relative incompetence.
Practical Application and Jurisprudence
Current jurisprudence from superior courts reinforces the immutability of absolute competence. The Supreme Federal Court (STF), in various concentrated control actions, reaffirms that competence is a matter of public policy, cognizable ex officio at any time and degree of jurisdiction. Notable is Precedent 33 of the Superior Court of Justice (STJ), which states: "Relative incompetence cannot be declared ex officio". Conversely, absolute incompetence can be raised at any stage of the proceedings.
Recently, the debate on competence has intensified in the sphere of digital competence and international jurisdiction, where the application of Art. 21 of the CPC/15 and the theory of procedural cosmopolitanism require a reinterpretation of classical territorial limits.
Related Principles and Divergences
The principle of the Natural Judge is the central pillar of competence. It correlates with the principle of Extension of Competence, which allows for the stabilization of competence when relative incompetence is not raised within the legal deadline (Art. 65 of the CPC). Doctrinal divergences persist regarding the nature of functional competence, which many authors, such as Cândido Rangel Dinamarco, classify as absolute and insusceptible to preclusion or extension.
Contemporary Relevance
The contemporary relevance of competence lies in the effectiveness of judicial provision and the efficiency of the procedural system. Strict adherence to competence rules prevents "forum shopping" (strategic choice of venue by the parties), protecting the integrity of the judiciary. The practical impact is direct: failure to establish competence generates waste of public resources and legal uncertainty, making the understanding of this institute indispensable for legal practitioners.
Legal and Jurisprudential References
- Constitution of the Federative Republic of Brazil of 1988, Arts. 5, 102, 105, and 109.
- Law No. 13,105, of March 16, 2015 (Code of Civil Procedure), Arts. 42 to 66.
- Precedent No. 33 of the Superior Court of Justice (STJ): "Relative incompetence cannot be declared ex officio".
- Binding Precedent No. 45 of the STF: "The constitutional competence of the Jury Tribunal prevails over the forum by prerogative of function established exclusively by the State Constitution".
- STF, ADI 6.524, Rapporteur Justice Luís Roberto Barroso, Plenary Court, recent judgment reaffirming absolute competence as a prerequisite for procedural validity.
