The magistracy comprises the body of public agents invested with jurisdictional functions, constituting the fundamental pillar of the Judiciary. Rooted in Constitutional and Administrative Law, its primary purpose is the application of law to concrete cases, ensuring social peace, the supremacy of the Constitution, and the protection of fundamental rights through the exercise of jurisdiction.
Concept and Foundation
The magistracy, as an institution, is not to be confused with the mere exercise of a public function; it is a state duty derived from sovereignty, aimed at social pacification through the resolution of conflicts. Legally, the magistracy is characterized by appointment through public competitive examinations, governed by a specific legal statute that ensures institutional prerogatives essential to impartiality, notably life tenure, irremovability, and the non-reducibility of subsidies (Art. 95, CF/88).
Historical Origin and Evolution
The evolution of the magistracy dates back to the transition from the absolutist State to the Rule of Law. In Roman Law, the figure of the magistratus exercised both executive and judicial functions. With the advent of modern constitutionalism, the Brazilian magistracy moved away from the "servant of the sovereign" model to that of "guardian of the Constitution." The 1988 Constitution consolidated the transition to a State career model, structured under the principle of functional independence, which is essential for constitutional control and the balance of powers.
Legal Provision and Constitutional Structure
The Brazilian legal system grants the magistracy the status of a function essential to the sovereignty of the State. The normative basis consists of:
- Federal Constitution (CF/88): Articles 92 to 126, which provide for the organization, competencies, and guarantees of magistrates.
- Organic Law of the National Magistracy (LOMAN - Supplementary Law No. 35/1979): A statute that, although predating the 1988 Constitution, remains in force where not incompatible with it, regulating duties, prerogatives, and the legal regime of the career.
- Resolutions of the National Council of Justice (CNJ): An administrative, financial, and disciplinary oversight body, under the terms of Art. 103-B of the CF/88.
Practical Application and Jurisprudence
The jurisprudence of the Superior Courts (STF and STJ) has reiterated that the magistracy is subject to a rigorous regime of functional responsibility. The STF, when judging Direct Action of Unconstitutionality (ADI) No. 3.854, consolidated the understanding that the CNJ has the authority to oversee the administrative and disciplinary actions of magistrates, without this implying interference in jurisdictional independence. Recently, jurisprudence has focused on the modulation of judicial ethics and magistrate integrity, as observed in regulations regarding the use of social media and the fight against nepotism (CNJ Resolution No. 07/2005).
Related Principles and Doctrinal Divergences
The magistracy is sustained by the principle of judicial independence, which unfolds into organic and functional independence. Doctrinally, there is a debate regarding the tension between judicial activism — the proactive stance of the magistrate in the realization of rights — and judicial restraint. Guaranteeist currents, influenced by Luigi Ferrajoli, defend a magistracy strictly bound to strict legality, while sectors of contemporary doctrine emphasize the role of the magistrate as an agent of social transformation, based on the normative force of the Constitution.
Contemporary Relevance and Impacts on the Legal System
In the current scenario, the magistracy faces the challenge of digital transformation and procedural speed. The implementation of systems such as the PJe (Electronic Judicial Process) and the use of artificial intelligence in the screening of repetitive demands (as prescribed by the 2015 Code of Civil Procedure, arts. 926 et seq., on the standardization of jurisprudence) redefine the magistrate's practice. The contemporary magistracy does not merely judge; it manages the flow of litigation, acting as the central player in the effectiveness of jurisdictional provision in a Democratic State of Law.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988.
- BRAZIL. Supplementary Law No. 35, of March 14, 1979. Provides for the Organic Law of the National Magistracy.
- BRAZIL. Law No. 13.105, of March 16, 2015. Code of Civil Procedure.
- SUPREME FEDERAL COURT. ADI 3.854/DF. Rapporteur: Justice Cezar Peluso. Judged on 04/13/2005.
- NATIONAL COUNCIL OF JUSTICE. Resolution No. 7, of October 18, 2005. Provides for nepotism in the Judiciary.
