The jus agendi, or right of action, constitutes the legal faculty granted to the holder of a substantive right to invoke the State's jurisdictional provision, forming the core of procedural action. Primarily inserted in Civil and Constitutional Procedural Law, this institute translates the transposition of a substantive claim into the procedural sphere, enabling the exercise of jurisdiction as a state response to the inertia of a violated right.
Concept and Foundation
The jus agendi is not to be confused with the substantive right itself, but represents the autonomy of the power to set the judicial machinery in motion. Doctrinally, the legal nature of jus agendi is that of a public, subjective, abstract, and autonomous right. It is a right of a procedural nature that guarantees the individual the possibility of obtaining a judgment, regardless of whether the formulated request is granted or not.
The historical evolution of this concept reflects the overcoming of the immanentist conception of action — in which the action would be the substantive right itself in motion (Savigny) — towards the classical theory of Oskar von Bülow and the subsequent consolidation of the abstract theory of action. In the Brazilian legal system, action is understood as a public subjective right directed at the State-Judge, detached from the effective existence of the underlying substantive right.
Origin and Doctrinal Evolution
Historically, the transition to the autonomy of jus agendi occurred with the famous controversy between Windscheid and Muther (1856), which resulted in the separation between the claim (substantive right) and the action (procedural right). In Brazil, this evolution was received by classical procedural doctrine, culminating in the architecture of the 1973 Code of Civil Procedure and reaffirmed by the 2015 Code of Civil Procedure, which treats action as a right that does not require prior proof of its merits, conditioning it only on the presence of the conditions of the action.
Legal and Constitutional Provision
The constitutional foundation of jus agendi is enshrined in Article 5, item XXXV, of the 1988 Federal Constitution: "the law shall not exclude from the Judiciary's appreciation any injury or threat to a right." This provision consecrates the principle of the inalienability of jurisdiction, which is the maximum constitutional guarantee of the right of action.
In the infra-constitutional scope, the 2015 Code of Civil Procedure (Law No. 13.105/2015) operationalizes this right through Article 17: "To postulate in court, it is necessary to have interest and legitimacy." Contemporary doctrine, led by names such as Fredie Didier Jr. and Luiz Guilherme Marinoni, interprets jus agendi from the perspective of the primacy of judgment on the merits (Art. 4 of the CPC), conferring effectiveness to jurisdictional protection.
Practical Application and Jurisprudence
The jurisprudence of the Superior Courts (STF and STJ) has consolidated the understanding that jus agendi is a conditioned public subjective right. The absence of interest in acting or legitimatio ad causam prevents the regular exercise of the right of action, resulting in the dismissal of the case without resolution of the merits (Art. 485, VI, of the CPC).
Recently, the STF has reaffirmed that jus agendi is not absolute and may suffer legitimate limitations when misused, as in the case of reckless lawsuits or those that collide with constitutional norms of access to free justice, provided that the adversarial system and full defense are respected. The STJ's jurisprudence, in turn, has made the interpretation of the interest in acting (the necessity-adequacy binomial) more flexible to prioritize social pacification, in line with the social function of the process.
Related Principles and Divergences
Jus agendi is closely related to the principles of the adversarial system, full defense, and due process of law. A persistent doctrinal divergence lies in the nature of the "conditions of the action." While the classical school (Liebman) treated them as autonomous requirements, modern doctrine, influenced by the 2015 CPC, tends to treat them as issues of merit or procedural prerequisites, aiming to reduce excessive formalism.
Contemporary Relevance
In the current legal scenario, jus agendi is the pillar that supports access to justice in a system of growing litigation. The practical impact is manifested in the need for a balance between the right of action and the prohibition of abuse of procedural rights. The efficient management of lawsuits and the use of self-composition means (mediation and conciliation) do not represent restrictions on jus agendi, but rather its exercise through mechanisms that are faster and more appropriate for conflict resolution, as determined by Article 3 of the CPC.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Art. 5, XXXV.
- BRAZIL. Law No. 13.105, of March 16, 2015. Code of Civil Procedure. Arts. 3, 4, and 17.
- STF. ADI 2.386. Rapporteur Justice Eros Grau. Judgment on the inalienability of jurisdiction.
- STJ. REsp 1.845.925/PR. Discussion on legitimacy and interest in acting in collective actions.
- DIDIER JR., Fredie. Course on Civil Procedural Law: Introduction to Civil Procedural Law, General Part and Knowledge Process. 25th ed. Salvador: Juspodivm, 2023.
