Legalidade imunitária: riscos democráticos da prevenção do imprevisível

Abstract

In this article we seek the ambitious goal of exposing and contrasting two of the various traditions that have thought the problem of state of exception in the last decade. On the one hand, we will use the conceptual tools of philosophers such as Giorgio Agamben or Roberto Esposito to present our research hypothesis: is state of exception a structural or a temporary need of the Rule of Law States? On the other hand, we will intend to answer to this question through the legal and political literature that has been pointing the risks of preventive sovereign power that emerges in exceptional times, since the Constitutional Dictatorship to current times. Our thread will be the political ideal of preventing what is unknown and unpredictable, the power knowledge that it generates and its democratical risks. In this sense, our conclusion will defend that the legal analysis is unsatisfactory, as it does not envisages all the normative effects of normalization of exception process.