Conciliations on the Brazilian Federal Supreme Court beyond normativity

understanding the negotiable constitution; mobilizing the radical constitution

Abstract

https://doi.org/10.1590/2179-8966/2025/88068

This paper focuses on the implementation and normalization of conciliation settlements in judicial reviews (abstract constitutional control) by the Brazilian Federal Supreme Court. The paper claims that this practice cannot be understood through the normativity of the positive law in force, which is why it resorts to a theoretical analysis of the extranormative circumstances that have made it possible to conceive of the judicial review as a space of negotiation. To this extend, the analyses and categories put forth by the works of Wendy Brown (on the relationship between democracy and neoliberalism) and Jacques Rancière (on post-democracy), as well as the constitutional theories of Colón-Ríos (Constituent Power), Vera Karam de Chueiri (Radical Constitution) and Miguel Gualano de Godoy (Constitutional Process) are the main theoretical framework of this research. Its main claim is that there is a current tendency to conceive the constitution as negotiable, and so, in order to confront this tendency, another conception of the constitution has to be mobilized, the Radical Constitution.