Symbolic jurisprudence: the unconstitutional state of affairs in relation to the Brazilian penitentiary system

Abstract

The declaration of the unconstitutional state of affairs (ECI) in relation to the Brazilian penitentiary system in ADPF 347 is a legal, political and social event that did not reveal the practical scope intended by the STF decision. Instead of having the catalytic role of a structural change that would allow the restoration of a situation of protection of fundamental rights, the ECI is a procedure whose strategy is to exclude the incarcerated population. To describe this strategy, this article uses the genealogical method specific to Foucault's theory of power. In order to illustrate how the ECI reveals more continuity in the treatment of the issue by the judiciary than jurisprudential inflection, ADPF 347 will be placed among other decisions taken by the STF in what was identified as its “penitentiary system agenda”. From this jurisprudential framework, we can demonstrate how the ECI generates new power relations within what Foucault calls governmentality. Foucault's reflections indicate that, although unintentionally, the ECI maintains the framework of forces responsible for the constitution's lack of normativity. By employing Neves’ theory of symbolic constitution, the article describes the ECI as symbolic jurisprudence that interprets the constitution in a restrictive and exclusionary way. Besides this negative consequence, employing both Neves’ and Foucault’s theories, as a part of its a positive effect, the ECI reveals the excluded situation of prisoners, as well as the possible resistance to the subjectivication mechanism resulting from governmentality.