say what we are not

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The philosophical meaning of the unconstitutional state of affairs

1976, the end of a morning in Cabo de Santo Agostinho, metropolitan area of ​​Recife (PE). A taxi slowed and parked in a space. Marcos Mariano da Silva, 28 years old, married with children, came out of it, heading to an establishment with the intention of having lunch and returning to work. This is the beginning of the story classified by the Superior Court of Justice as “the most serious attack on human rape ever seen in Brazilian society”.

Accused of homicide, an injured man was reported to have touched Marcos' taxi, smearing blood on the windshield and hood. The accusation was supported by the victim's family and it became enough for Marcos Mariano da[I] Silva was put in prison for six years, only achieving freedom in 1982, when the real killer, Marcos Mariano Silva, confessed to the crime.

At the age of 34, abandoned by his family and ex-wife, Marcos faced the difficult task of reintegrating into society as a former prisoner. He worked for three years as a driver, until in 1985, approached by a civil police officer at a checkpoint on a Friday, he was once again confused. The policeman recognized Marcos and, thinking he was a fugitive, took him to Judge Aquino de Farias Reis, who ordered him to be arrested again.

This time, however, the consequences were more serious. Marcos imagined that he would only spend a weekend in prison, until they verified that it was a mistake. However, he spent another thirteen years in prison. During this period, he contracted tuberculosis and lost sight in both eyes, when he was hit by shrapnel from a tear gas bomb in a riot. The situation was only discovered when a director of the prison, Major Roberto Galindo, endeavored to review the institution's files, noting the very serious error.

Marcos was released in 1998, aged 50, after 19 years in prison without any crime. He sued the State of Pernambuco and won, after a lawsuit that lasted more than ten years, the right to receive compensation, in the amount of two million reais. He received half the amount, and died of a heart attack, aged 63, on the same day he received the news that the State had lost the last pending appeal, and would be obliged to pay him the remainder of the compensation.

This story is a grave warning that exemplifies the modus operandi of criminal justice and what it can mean to be imprisoned in Brazil: a true sentence to death in life, neglect and abandonment.

Even though it may be considered extreme, anyone who imagines that the report is an isolated fact is mistaken. Digging into the country's jurisprudence, cases arise in droves.[ii]. Thus, on the contrary, it must be a cause for fear to imagine that this was probably one of the few stories that came to light, illustrating the true gap between the norm and reality, especially when talking about the living conditions in prisons.

In this sense, overcrowding in penitentiaries, a significant number of pre-trial detainees, degraded and poorly maintained complexes, lack of access to justice and lawyers, as well as precarious (and often non-existent) assistance for education and health, are ghosts that haunt not only those unjustly imprisoned, but all those who enter the “Brazilian prison hell”.

These notes are some indications of a much more cruel and worrying reality about our prison system, namely: the person who has his freedom deprived suffers not only the deprivation of freedom, but is also exposed to all kinds of physical and psychological violence, disease, degrading treatment and torture. This situation is absolutely reproached by our constitutional and infraconstitutional legislation.

While the revolt against this state of affairs cannot be exclusive, considering only those who fall into the prison system unjustly, there is also concern about the fact that such a reality should not be allowed for any detainee, in accordance with the Brazilian Constitution and its principles. for human dignity. Evidently, the custodial sentence does not have this name by chance. It is deprivation of liberty, not condemning to torture and mistreatment, disease and violence, among others.

The truth is that a large part of the population does not have a real dimension of what happens to those incarcerated within the Brazilian prison system, nor does it show empathy when they know it. Usually, when talking about the investigation of a crime, the arrest of a suspect, or the trial of a defendant, the narrative ends with the phrase “he is under arrest”. Period, as if prison was the end.

But what happens inside the prison? And what will happen until that person is released? How will it get out of there and what costs will it demand from the State and society? These questions cannot be ignored.

The prognosis is not good. In a report finalized in 2008, the CPI of the Prison System classified the situation as: “Despite the excellent legislation and the monumental structure of the National State, the overwhelming majority of prisoners in Brazil receive worse treatment than that given to animals: as human garbage (...) Instead of recovering those who deviated from legality, the State brutalizes, creates and returns true human beasts to the streets”.[iii]

This reality favors the growth of organized crime and, without a doubt, spills over into the streets, affecting society as a whole.[iv]

Thus, the consolidation of an extremely violent environment within prison institutions not only contributes to the frustration of the objective of re-socializing the sentence, but also manifestly violates fundamental rights and guarantees present in the 1988 Charter in a systematic way. This was the reality that led to the filing of Action for Breach of Fundamental Precept nº 347 before the Federal Supreme Court, in 2015, which will be discussed below.

According to data from Sisdepen[v], in 2015 there were a total of 698.618 prisoners in Brazil for 371.201 vacancies, representing a deficit of 327.417 in the total need for vacancies (it was the highest number to date, since the beginning of the historical series). Not enough, at the time, of the total number of prisoners, 37,47% were provisional, who should not be mixed with those effectively convicted.[vi]

The numbers are cold, but the reality is scorching. This is because the sum of the conditions narrated with the number of people subjected to them, in this amalgamation of violations, gives birth to the true chimera in the perspective of any recovery of the detainees.

In action ADPF 347, which aims at the declaration of the “Unconstitutional State of Affairs” (ECI)[vii], the applicant argues that mass incarceration and the conditions of prisons in Brazil not only do not generate the alleged security they promise, but also, and on the contrary, aggravate the rates of crime and social violence for society as a whole.

The action brought as a novelty, however, the insurgency not against a clearly identified norm, or against an act of one of the Powers specifically, but explained, in the words of the initial petition, what the Brazilian State lacks, in its various powers and federative instances , “the slightest political will to transpose from paper to reality the constitutional promise of guaranteeing the human dignity of the prisoner”[viii]. In this way, he defended that the scenario would challenge the intervention of the Brazilian constitutional jurisdiction in the problem, not only in the control of constitutionality, but in the guarantee that the dignity of vulnerable groups would be protected.

Since the incarcerated are an unpopular group in the eyes of public opinion, there is a clear disincentive for the political system and state bureaucracy to defend their rights. Not only do they not vote, so they are unable to elect representatives to guide their interests, but it is also clear that the voluntary association of any politician with the prisoners' claims can represent a loss of political capital to the popular representative, which would justify, on the one hand, , the inertia of public representatives, fearful of losing elections, but on the other hand the countermajoritarian action of the STF.

For this reason, the applicant requested that the “Unconstitutional State of Affairs” be declared, referring to the situation of the Brazilian prison system and the effects on prisoners.

The Unconstitutional State of Affairs is characterized as a constitutional judicial technique, used by the Constitutional Judiciary of a country, whose main objective is to break the inertia of the other powers of the Republic, in a scenario in which (i) there is a massive violation of fundamental rights and prerogatives of a group, (ii) continued omission by public authorities, which generates and aggravates these omissions, and that (iii) the solution depends on a coordinated action between the powers.

The massive and generalized violation of indiscriminate fundamental rights must affect a large indeterminable group of people in a systematic way. Moreover, it is not mandatory, but this determination effervesces when the group of people does not have effective or adequate political representation in representative bodies, becoming invisible to the State.

The omission of public authorities must be attributable to more than one entity, which configures a “structural failure”. In the words of LAGER AND BUGGER, it is not the inertia of a single authority or institution, but rather the deficient functioning of the State as a whole. It is also important to highlight that the omission mentioned here is related to yet another factor: the lack of discussion of the problem. That is, there is no political will to solve the problem, which is different from mismanagement in public dealings.[ix].

Finally, on the third assumption, the two previous ones lead to the conclusion that there is a structural wound in society, the solution of which will not be reached only by the simple tutelage of a judicial body or public administration. On the contrary, precisely because of the complex scenario of plurality of victims and causes of the problem addressed, it becomes necessary to seek different remedies for the solution.

Along with all this, the Constitutional Court will not resolve the contentious situation in isolation, through orders of direct compliance, but must address the institutional problems by promoting continuous dialogue between the powers.

In this way, the technique consists of a summons by the Constitutional Court to the beginning of the debate on a severe question, after the verification of the indicated assumptions.

Therefore, the Unconstitutional State of Affairs was first introduced in Brazil through ADPF 347 filed by PSOL (Partido Socialismo e Liberdade) on 27/05/2015. The objective of the action is the recognition of the figure of the ECI in relation to the Brazilian penitentiary system, so that there is the adoption of structural measures that aim at the resolution of the injuries to fundamental precepts suffered by the incarcerated.

The applicant indicated that there was a massive and systematic violation of fundamental rights, discussed the omission of powers in resolving the issue, and pointed out that overcoming this state of affairs requires coordination between different bodies. Furthermore, he made specific requests to different spheres of the judiciary, legislative and executive branches.

The case was rapporteured by Justice Marco Aurélio, who, in the judgment of the Precautionary Measure, understood that the recognition of this new modality of unconstitutionality in Brazilian law was appropriate. After describing the urgent situation of the prison population in Brazil, the rapporteur confirmed that it stems from numerous violations of fundamental rights, as well as the basic precepts of the Penal Execution Law (Law 7210/1984).

According to the Minister, such violations would not have their impact restricted only to subjective and individualized situations, but would affect the entirety of those incarcerated in the country and, consequently, the whole of society, concluding that the Brazilian prison was not useful for resocialization. Therefore, he declared the existence of the State of Affairs Unconstitutional, showing that the STF should function as an institutional coordinator to produce an unblocking effect of the discussion, and not as a maker of public policies.

In view of this, it granted preliminary injunctions for judges to hold custody hearings throughout the national territory, within 90 days; ordered the release of resources from the – so-called contingency – National Penitentiary Fund (Funpen) for reform, improvement and construction of new prisons, as a way of creating new vacancies and reducing the deficit; and formally requested information from the Union and the States regarding their prison systems. Ministers Fachin, Barroso, Zavascki, Weber, Fux, Carmen Lúcia, Celso de Mello and Lewandowski repeated, with little variation, the arguments defended by Marco Aurélio.

Urged to act, the Executive Power edited Provisional Measures 755 and 781 (later converted into law), which amended the Complementary Law that created Funpen (LC 79/94) with the objective of facilitating its de-contingency, by reducing the bureaucracy of transfers. It happens, however, that the action was the target of criticism, including resulting in the addition of the initial in APDF 347, on the grounds that the measures of the Executive ended up giving the Penitentiary Fund a strange destination simply to improve the penitentiary system, such as the strengthening of intelligence of the police and carrying out educational campaigns on security, which would materially worsen the chaos in the prisons and deepen the Unconstitutional State of Things.

Furthermore, the Federal Supreme Court not only did not judge the merits of the action in six years, but also did not monitor compliance with the measures, through flexible sentences. Likewise, when provoked in other actions, it denied new declaration of ECIs for similar problems[X], in the same way that it became the preferred address for constitutional complaints by individuals who wanted to achieve the obligation to hold custody hearings in their criminal cases, congesting the Court's agenda.

As a result, however, the greatest advance is in the reduction of the percentage of pre-trial detainees. 37,47% in 2015 to 30,15% in 2020, although it is not clear whether this decrease is a direct consequence of ADPF 347.

With this analysis on the agenda, it is not uncommon to ask the question: should we give up the ECI as a mechanism to change our social reality? Is he doomed to fail? Was the use of this concept in Brazil done correctly? Has the Federal Supreme Court rushed?

However, before there is any kind of anticipation that has as its motto the destruction or exacerbated exaltation of the institute, to answer this question, this article wants to shed light on an aspect that was not identified in any other study on the subject, which namely: the philosophical meaning of a declaration of an unconstitutional state of affairs.

 Before dwelling on the question posed – “what is the philosophical sense of declaring an unconstitutional state of affairs?” -, it is necessary to make considerations about Hegel's dialectic and phenomenology, essential as a theoretical instrument used to answer him in this article.

The most notable contribution of Hegelian thought is the insistence that any and all normativity that is presented to us as “necessary” has a “genesis”, which not only justifies the need for this validity, but a genesis that makes explicit what normativity seeks to imply[xi]. By emphasizing this insistence and presenting the search for the genesis, a critique is made of what is presented to us as absolutely evident, necessary and, in short, “natural”. Moreover, it is impossible to get away from the historicity that marks the succession of events.

Added to this, in order to operationalize this investigation of the genesis and significant evolution, Hegel recovered the Greek concept of dialectic, modifying it in a decisive way. His philosophy can be understood as the realization of the concept of dialectic in its movement from the “concept” to culminating in the “idea”, recovering the historicity of events. This development would even have a specific geographical direction, going from East to West.[xii]

It explains itself.

Historically, dialectics is associated with the history of philosophy in Greece. It comes from the Greek term that talks about the art of dialoguing with reason. It is present in the maieutic[xiii] Socratic, as a way of entering the other's thinking through questions and making him enter into contradiction within his own reasoning, reducing it to absurdity, and is also defined by Plato as: "This one who knows how to interrogate and answer until reaching the clarification of general principles”.

Plato points out that dialectics as a process serves to destroy hypotheses until we reach a principle. For all these reasons, dialectics was associated, even in the medieval experience, much more with the idea of ​​rhetoric than logic, linked to the art of reasoning. Able to reach apparently right conclusions, although not truly connected to logic.

Hegel recovered the concept of dialectics in a suggestive and peculiar way. Not just from the medieval principles of “thesis, antithesis and synthesis”, but as a spirit of contradiction. Thus, the Hegelian dialectic is the spirit of organized contradiction, that is, a way of thinking in which contradiction is the engine of thought.

This is counterintuitive to us, because in common sense contradiction is precisely what stops and interrupts thought. Hegel, in turn, brought contradiction to the level of thinking in motion. This movement is based on the following process: first, it produces something that destroys the very concept of what one thinks; then the destruction, then, causes a second movement that is the “return to oneself”, thus integrating the concept to another plateau.

Thus, Hegel's "experience" is the process through which something alienates itself, places itself in what would be its negative, and then returns from that alienation with a new meaning. Without a defined temporality, there is no historical criterion for the duration of this process.

And that is exactly what the declaration of an Unconstitutional State of Affairs by a Constitutional Court does, philosophically.

When faced with an allegation of massive violation of fundamental rights and comparing the norm with reality, the Constitutional Court declares “what we are not”, our antithesis, based on the constitutional framework based on human dignity, the protection of life, and access to social rights. This determination, with the objective of breaking the inertia of the different Powers and, logically, changing reality, is nothing more than the movement proposed by Hegel, in the sense of reaching a new level as a society, in which the punctuated problem is overcome.

Evidencing the comparison between the brutal reality of the prison system and the fundamental guarantees of the Constitution, there is the destruction of what is thought about our society with the declaration of the Unconstitutional State of Affairs. After this destruction, with the breaking of inertia and the adoption of coordinated measures by the different public agents, the second movement is heading, the “return to oneself”, with the harvest of practical results that can even be the creation of new legislative frameworks to solve the problem. There is thus a new plateau social, which may or may not be sufficient for the intended objectives and indicate new paths of action.

In this way, the idea of ​​the Unconstitutional State of Affairs gains special prominence not as a panacea, as many critics try to make it appear to be, but as an efficient and philosophically oriented technique to boost thought and public debate, in situations that require the movement of many bodies of power to resolve an issue that affects, above all, people and groups that do not have an institutional voice.

The Brazilian example, although not the best in terms of the results of the ECI declaration, is not to be completely discarded. First, because the process that originated the institute is still in progress, with merit pending judgment. Second, because the data, despite everything, do indicate a certain improvement in the indicators.

The doubt that represents the Gordian knot of the discussion is to what extent these changes can be related to ADPF 347? If it is not a simple task to relate them in a cause and consequence relationship, it is equally not so simple to distance them and say that they have no relationship.

For this reason, assuming that the main objective of an ECI declaration is not to be a magic trick, but rather a specific tool to propel a debate, one recovers the belief that the institute can be a great ally if used in a correct way. more efficient.

In short, finding the philosophical meaning of a practice can prove to be the best way out to respond to the criticism that the doctrine faces, facing the path it should follow, without discarding it forever in the face of the first insecurities observed.

           After all of the above, it is established that the Brazilian prison system does not have the capacity to provide a sentence that means the resocialization of those incarcerated, presents a chronic deficit of vacancies for the number of prisoners, and goes beyond the constitutional guarantees and the Law of Execution Criminal. This reality leads to generalized and massive violations of fundamental rights for a portion of the population that finds serious difficulties in guiding its interests in the political field, configuring itself as an unheard voice.

The problem in vogue is complex and demands the coordinated action of several government agencies, with a budget reserve, which prevents constitutionality control from being specifically applied to an individualized rule or act of the Public Power. Not enough, one can observe the prolonged inertia of those who have the tools capable of resolving the issue.

The institute of the Unconstitutional State of Things appears in the face of this reality as a valuable constitutional technique, originated by the Colombian Constitutional Court, which can be used by our Federal Supreme Court to address the problems faced.

Indeed, it is a technique that aims to break the inertia of the powers to initiate public debate on a critical issue. It has as its assumption the massive violation of fundamental rights of a considerable number of people, the continued omission of public bodies, and the need for coordination of different entities for the best solution. By the constitutional court, its best application is through flexible sentences.

In this context, the philosophical meaning of the ECI is extremely important to reveal the path we want to follow as a society to reach a plateau new, in which our norm and reality are more identified with each other, not being, evidently, a panacea declaration capable of solving the problem alone

On the contrary, as an indication of the continuity of the debate, other issues that need to be debated when talking about the situation of the Brazilian prison system are the culture of incarceration, both in criminal justice and in relation to the desires of a significant part of society, which is extremely punitive. , calls for more prisons, wants to criminalize practices and defends the brutalization of sentences.

How many people are in prison for what crimes? Do most crimes refer to violent practices? What are the behaviors that cause the most disgust in Brazilian society? Do they reflect on the indicators of the prison system? Do we hold a lot? Did we hold it wrong?

*Vitor Piazzarollo Loureiro is a master's student at the Department of Philosophy and General Theory of Law at FD-USP.


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[I] Underlined to demonstrate that the mistake was even supported by a single preposition that differentiated the name of the true criminal from that of the innocent.

[ii] A classic example is the well-known “Caso dos Irmãos Naves”, from 1937, in Araguari/MG. More recently, also in MG, the case of artist Eugenio Fiuza de Queiroz, imprisoned for 18 years for rapes he did not commit, gained notoriety. His innocence came after the recognition of the real criminal, Pedro Meyer, in 2012.

[iii]  Chamber of Deputies. CPI Report of the Prison System, 2009, p. 172. (doc. 6). Also available in:

[iv] The CPI found men crammed like human garbage into crowded cells, taking turns sleeping, or sleeping on top of the toilet. In other establishments, half-naked men groaning in front of the clogged cell. In other establishments, hammocks over hammocks on top of beds. Women with their newborn children squeezed into dirty cells (…) This is how prisoners live in Brazil. This is how most Brazilian penal establishments are. This is how the Brazilian authorities take care of their poor prisoners. And that's how the authorities put, every single day, human beasts thrown into the street to live with society. Chamber of Deputies. Report of the CPI of the Prison System, 2009. p. 244. Chamber of Deputies. (doc. 6). Also available in:

[v] Available in Accessed on 24/06/2021.

[vi] The most up-to-date data, from 2020, point to a total number of 678.506 prisoners, compared to 446.738 vacancies (a deficit of 231.768 vacancies). That is, there was an improvement in the numbers. However, between 2016 and 2019 the deficit remained high, even accumulating an increase in every year, until it retreated at the turn of the decade.

[vii] It is a technique created in the Colombian Constitutional Court, to shorten the article the historical evolution was suppressed, but if there is interest contact by for full version.

[viii] Initial petition of ADPF 347, page 06. Available at

[ix] For example, it is a well-known fact that the health and education systems still have a long way to go in the country, which is different from saying that they are not on the political agenda. On the contrary, such issues are repeatedly discussed in the spheres of power, as well as there are politicians identified with these causes, whose electoral base, including, comes from their militancy in favor of these issues.

[X] Constitutional Claims Nos. 23.872 and 26.111.

[xi] Put more simply: things have a “reason for being” understood when we look for answers in history.

[xii] Specifically on this point, it is worth mentioning that several important authors disagree with this idea of ​​a geographical direction of thought, including this author.

[xiii] “Breakthrough of Ideas”. Socrates' mother was a midwife and her son helped her several times in her trade. When he entered the field of philosophy, Socrates said that, just like the birth of a baby, the ideas were within us, as soon as we gave birth to him, just like in a birth. Also, in ancient Greece, Maia was the goddess of fertility, which gives rise to the word “maieutics”, a method to facilitate the delivery of ideas, through successive questions.

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