Sobre o Amicus Curiae no processo civil brasileiro: limites e possibilidades

Abstract

It is in process, in Congress, the project of new Brazilian Civil Procedure Code. Among several novelties envisaged, is the institution of amicus curiae as a new type of third party intervention. Once approved the project in terms of what it is, amicus intervention may be admitted to any degree of jurisdiction, since demonstrated the requirements of matter’s relevance, disputed issue's specificity or social repercussion of controversy, beyond proper representation of the applicant. In order to verify the viability of this generalization, this essay follows a route that begins with an analysis of the conditions that promoted its appearance and development in countries affiliated to common law model. In a second step, the attention falls on the Brazilian legal system, that is, on the cases of amicus curiae’s intervention provided in the Brazilian system and the consequent definition of institute’s legal nature. Then, attention is focused on the characteristics of neoconstitucionalism – rejection of formalism and use of an open legal methodology, constitutionalization of the law and judicialization of politics – which, in a greater or lower extent, lead to the need for a new constitutional hermeneutics. After the demonstration that this change of paradigm is accepted by the STF, which has been anchored in the theory of the open society proposed by Peter Häberle to promote an opening of constitutional jurisdiction, it is time to check if such opening is also justified in relation to ordinary jurisdiction. It is concluded that the generalization ignores the main purpose of the institute that identifies it since its advent in countries affiliated to the common law legal tradition, namely, the binding force of judgments entered in processes that allow the participation of a third as amicus curiae. So, the phenomenon of amicus curiae’s generalization, that is, extending the list of its chances of admission in addition to those already set in Brazilian legal system, must be understood through the prism of the binding force of precedents or, at least, persuasive effectiveness of judgments in Brazilian civil court system.