Litigation constitutes the core of jurisdiction, defined as a resisted claim that demands the intervention of the State-judge for social pacification. Primarily inserted in Civil Procedural Law, the institute embodies a conflict of interests qualified by a claim, whose primary purpose is the substitution of self-help by jurisdictional protection, ensuring legal certainty and the effectiveness of the legal system.
Concept and Foundation
Litigation, in the classical doctrinal sense, notably based on Francesco Carnelutti's Theory of the Dispute (Teoria da Lide), is understood as a conflict of interests qualified by a resisted claim. It is not to be confused with a mere disagreement; it requires the existence of a substantial interest which, in the face of resistance from the opposing party, transforms into the object of a judicial process. The legal nature of litigation is procedural and dynamic, serving as the catalyst for jurisdictional activity, which is realized through the exercise of the right of action.
Historical Origin and Evolution
Historically, the overcoming of self-help — justice by one's own hands — marked the transition to the Rule of Law. In Roman Law, the transition from legis actiones to the formulary procedure established the foundations of the dispute (lide) as the object to be resolved by the magistrate. In the Brazilian legal system, doctrinal evolution followed Continental European Law, consolidating the dispute as the element that delimits jurisdictional provision, as advocated by the principle of adstriction or congruence, provided for in Article 492 of the 2015 Code of Civil Procedure (CPC/15).
Legal Provision and Structure
The Brazilian legal system enshrines litigation as a prerequisite for jurisdiction. The 1988 Federal Constitution, in its Article 5, item XXXV, establishes the principle of the inalienability of jurisdiction: "the law shall not exclude from the Judiciary's appreciation any injury or threat to a right." This provision grounds the legitimacy of state action in the face of any existing litigation. In the procedural scope, the CPC/15, in its Article 141, determines that the judge shall decide the merits within the limits proposed by the parties, with litigation, therefore, being the benchmark for competence and the extent of res judicata.
Practical Application and Jurisprudence
Current jurisprudence, notably in the Superior Court of Justice (STJ), reinforces the need for procedural interest (the necessity-adequacy binomial) for the existence of legitimate litigation. The STJ has consolidated the understanding that the absence of resistance (resisted claim) empties the interest to act, leading to the dismissal of the case without resolution of the merits, under the terms of Article 485, VI, of the CPC. In recent decisions, the Supreme Federal Court (STF) has reiterated that the existence of litigation is a sine qua non condition for the concentrated control of constitutionality (ADI, ADC, ADPF), requiring the demonstration of a relevant and current judicial controversy.
Doctrinal Divergences and Related Principles
There is a contemporary doctrinal current that, inspired by "Multi-Door Justice," questions the centrality of the dispute as the sole engine of the process. Authors such as Kazuo Watanabe argue that the system should focus on "conflict management" rather than just "litigation resolution." However, classical doctrine remains firm in maintaining that, even in mediation and conciliation (encouraged by Art. 3 of the CPC/15), litigation remains the object upon which the autonomy of will for self-composition acts. The principle of the primacy of merit judgment (Art. 4 of the CPC/15) reaffirms that litigation must be resolved, whenever possible, definitively by the Judiciary.
Contemporary Relevance and Impacts
The modernization of Brazilian Procedural Law has demanded a new stance regarding litigation. The phenomenon of the "judicialization of politics" and the overload of the Judiciary impose the need for selectivity filters, such as the General Repercussion (Repercussão Geral) in the STF and the Incident of Assumption of Competence (IAC) in the STJ. Such mechanisms demonstrate that, although litigation is the reason for jurisdiction, the handling of conflicts in the 21st century must be staggered, prioritizing consensual methods to reduce the social and economic cost of excessive litigation.
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, 141, 485, and 492.
- BRAZIL. Superior Court of Justice. Interest to act and resisted claim. Recent precedents on the need for a concrete dispute for the processing of declaratory actions.
- BRAZIL. Supreme Federal Court. Requirements for concentrated constitutionality control actions: the requirement of relevant judicial controversy (ADI 4668, Rel. Min. Luiz Fux).
- CARNELUTTI, Francesco. Sistema de Derecho Procesal Civil. Ed. UTHEA, 1944.
