The massive violation of human rights in Brazilian prisons is a public and notorious fact that has affected the whole of Brazilian society for at least a decade. Face with this repeated omission, the judiciary has been expanding its jurisdiction under the argument of effective fundamental rights. In this sense, the dissertation aims to analyze a result of this movement that is a theory / technique of the Unconstitutional State of Affairs. The measure that was incorporated into the Brazilian penitentiary system by the Supreme Federal Court in 2015, through the Argument of Breach of Fundamental Precept 347, is pointed out by the doctrine and by the STF itself as an adequate instrument for the execution of social crises.We thus seek to describe the legal scenario that originated the institute ate the Colombian Constitutional Court, your configuration parameters and also a historical influence of the litigation related to the US Supreme Court. Finally, considering the centrality of language in relation to the legal phenomenon, we seek to study the extent to which the ECI incorporation submitted to the doctrine of John Austin can be considered an unhappy performative, or even, according to the teaching of Marcelo Neves, to approach a symbolic judicialization.
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