Jurisdiction, a fundamental institute of Procedural Law, embodies the state function of applying the law to specific cases, replacing the will of the parties with the will of the law. As a power-duty, jurisdiction is the instrument for social pacification and a guarantee of the supremacy of the legal order, being exercised in the Brazilian legal system primarily by the Judiciary.
Concept and Foundation
Jurisdiction (from the Latin jurisdictio, "to say the law") constitutes the sovereign function of the State to resolve conflicts of interest through the application of legal norms to facts submitted for its consideration. From the perspective of the General Theory of Process, jurisdiction is one of the state functions, alongside the legislative and executive, distinguished from them by its inert and substitutive nature.
The legal nature of jurisdiction is that of a power-duty. It is a power, as the State holds the monopoly on legitimate force to impose decisions; it is a duty, as the magistrate cannot evade providing jurisdictional protection, in accordance with the principle of inalienability of judicial review (Art. 5, XXXV, CF/88). Furthermore, it is a substitutive activity, as the State replaces the will of the conflicting parties with the will of the legal order, conferring finality to the solution through res judicata.
Historical Evolution
Historically, jurisdiction evolved from primitive self-help—where physical force was the criterion for resolving disputes—to self-composition and, finally, to state heterocomposition. In Roman Law, the distinction between jurisdictio (saying the law) and judicatio (judging the case) was notable, evolving into the concentration of these powers in the robed magistrate. In modern constitutionalism, jurisdiction has transformed from an instrument of the monarch's power into an instrument for guaranteeing the citizen's fundamental rights.
Legal Provision and Constitutional Structure
The Brazilian legal system grants jurisdiction the status of a fundamental guarantee. The 1988 Federal Constitution establishes, in its Article 5, item XXXV, that "the law shall not exclude from the Judiciary's consideration any injury or threat to a right." The organization of jurisdiction is outlined in Articles 92 to 126 of the Magna Carta, which define the competence of federal and state courts and judges.
In the infraconstitutional scope, the Code of Civil Procedure (CPC/2015) reinforces the duty to provide grounds for decisions (Art. 489) and the observance of precedents (Art. 926), elements that integrate the exercise of contemporary jurisdiction.
Practical Application and Jurisprudence
The jurisprudence of the Superior Courts (STF and STJ) has consolidated the understanding that jurisdiction is not exhausted by the mere literal application of the law, but requires conformity to the system of precedents. The STF, in several rulings, reinforces that "constitutional jurisdiction" implies the judicial review of laws, granting the Judiciary the role of guardian of the democratic order.
By way of example, the current understanding of jurisdiction involves the expansion of self-compositional means (mediation and conciliation) as an integral part of jurisdictional activity, as encouraged by Art. 3 of the CPC/2015, demonstrating that modern jurisdiction also fosters consensual pacification.
Related Principles and Doctrinal Divergences
The principles informing jurisdiction include:
- Principle of Inertia: The Judiciary does not act ex officio in initiating the process (Art. 2, CPC).
- Principle of Non-delegability: The judge cannot delegate their jurisdictional functions, except in cases provided by law (letters rogatory).
- Principle of Investiture: Jurisdiction is only exercised by those who have been regularly invested in the office.
- Principle of Territoriality: Jurisdiction is exercised within the territorial limits of the State, observing the rules of competence.
Doctrinal divergences persist regarding the nature of constitutional jurisdiction and so-called "judicial activism." While more conservative currents defend judicial restraint, based on strict adherence to the legal text, contemporary currents maintain the need for proactive jurisdiction to effectuate social and fundamental rights, balancing the protection of human dignity with legal certainty.
Contemporary Relevance
Currently, jurisdiction faces the challenge of digital transformation (100% Digital Court) and artificial intelligence. Procedural speed and the need for timely decisions force the jurisdictional system to adapt without compromising due process of law. Jurisdiction, therefore, reaffirms itself not only as a state power but as an essential public service that must ensure efficiency and justice in the information society.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Art. 5, XXXV; Art. 92 to 126.
- BRAZIL. Law No. 13.105, of March 16, 2015. Code of Civil Procedure.
- STF. ADI 5.941/DF. Rapporteur Justice Roberto Barroso. (Discussion on the limits of constitutional jurisdiction).
- STJ. Jurisprudence Newsletter No. 789 (Precedents on the nature of jurisdictional provision).
- DINAMARCO, Cândido Rangel. Instituições de Direito Processual Civil. Vol. I. São Paulo: Malheiros.
