CONSTITUTIONAL CHANGES AS STRATEGIC RHETORIC IN THE

BRAZILIAN JUDICIARY POWER1

Pedro de Oliveira Alves

(Faculdade de Direito de Vitória and Universidade Federal de Pernambuco, Brazil)
E-mail: pedro.oalves@ufpe.br

João Maurício Adeodato

(Faculdade de Direito de Vitória and Universidade Nove de Julho, Brazil)
E-mail: jmadeodato@gmail.com

1
The present work was carried out with the support of the Espírito Santo Research and Innovation
Support Foundation (Fundação de Amparo à Pesquisa e Inovação do Espírito Santo – FAPES).
CONSTITUTIONAL CHANGES AS STRATEGIC RHETORIC IN THE BRAZILIAN
JUDICIARY

Abstract: This is a critical analysis of “constitutional mutations” in legal argumentation developed in the
Brazilian Constitutional Court (Supreme Federal Court), problematizing discourses assigning meaning to
certain legal norms such as the republican principle in the trial of Criminal Action 937. This is, therefore,
an investigation into the development of Constitutional Law through the argumentation produced within
the Judiciary. The research discusses the application of Analytical Rhetoric criteria developed at the
Mainz School (Theodor Viehweg, Ottmar Ballweg, and Katharina von Schlieffen) as a tool for empirical
reflection on constitutional argumentation in the Judiciary, addressing the advantages and limitations of
this methodology.

Keywords: Analytical rhetoric, constitutional change, Judiciary Power.

1. Introduction
This text is a proposal for reflection on the methodological possibilities of a critical analysis of judicial
reasoning from a rhetorical perspective on the role of “constitutional mutations”. As observed in the
ruling on the judgement of Brazilian Supreme Federal Court (Matter of Order of Criminal Action
937/RJ), generic arguments about the occurrence of “constitutional mutations” in the criminal realm can
pose a significant problem to the Rule of Law: the risk of legitimizing political decisions of judges
through seemingly technical arguments. Therefore, universities also have the function of critically
monitoring the processes of justification and decision-making by judicial bodies.
As a hypothesis for discussion, the argument is made that the use of “Analytical Rhetoric” may be a
suitable approach to understanding the risks of an apparent technical rationality that seeks to legitimize
the political interests of decision-makers. Thus, the research in this work revisits a series of reflections on
models of analysis of judicial decisions – some of which have already been published in journals such as
the “Revista Direito e Práxis” (University of Rio de Janeiro). It is understood that this study contributes to
the ongoing discussion on the risks of institutional authoritarianism camouflaged by legal technique.
More specifically, the research begins with a discussion of the peculiarities and assumptions of empirical
research focused on the analysis of legal argumentation – specifically, the characteristics and fundamental
concepts of “Analytical Rhetoric” as a theoretical framework. This first step is crucial, as it will clarify
the criteria to be adopted and their potential limitations.
Next, the specific issue of “constitutional mutations” will be problematized, providing a general overview
of their different uses in the reasoning offered by Brazilian courts. In other words, the research clarifies
how Brazilian law employs the discourse of mutations to justify decisions contrary to its own precedents.
In this discussion, the potential weaknesses of Brazilian legal dogma will become more evident, as it will
be observed how Brazilian doctrine deals with the forensic use of constitutional change.
In a third stage, the research practically applies the assumptions of Analytical Rhetoric to understand the
problem of constitutional changes in the Matter of Order of Criminal Action 937 – judged by the Supreme
Federal Court in 2018. In this specific case, the mentioned higher court reversed its understanding of the
privileged jurisdiction for political function. However, it is emphasized that this research does not offer a
legal-dogmatic discussion of the mentioned legal institution, limiting itself to a critical analysis of the
attribution of informal mutations as a means to change the courts' own understanding.
Therefore, the research aims to contribute to discussions about the possibility of a critical Constitutional
Law for Brazilian issues. Hence, the last section provides a moment of reflection on the potential of
jurists for critical argumentative control of legal practice. In conclusion, final considerations are
developed without any intention of closing the discussion, but rather with the aim of contributing
critically from an empirical perspective.
2. Methodological challenges for empirical research in Brazilian law: the proposal of Analytical
Rhetoric
Various concrete aspects of how legal decisions are made by competent authorities can be inferred from
an empirical perspective on specific processes and judgments. Thus, legal research ceases to be seen as a
mere idealistic narrative and begins to investigate the real institutional functioning of the judging body.
Questions such as the time of judgment, the formulation of agendas by the Judiciary, and the dynamics of
judgments become better reflected in the academic sphere. Therefore, empirical research has been
increasingly promoted in the Brazilian context, especially regarding the analysis of justifications and
institutional performance of the Courts (Palma, Feferbaum & Pinheiro, 2019: pp. 106-108).
In Brazil, different empirical approaches seek to establish themselves as pathways to a proper
understanding of the way of being of Brazilian Constitutional Law. After all, by seeking to understand
how law actually works, it becomes possible to perceive legal practice in a more realistic and less
idealistic way: with all its problems and difficulties. As individuals begin to recognize the real practical
problems of Brazil, they can become aware of their own reality – potentially strengthening the sense of
change, with potential ruptures for the emergence of new practices.
Among the various possible perspectives, the realistic rhetorical proposal will be analyzed. This approach
has been developed by different researchers – all influenced by the philosopher Friedrich Nietzsche and
jurists Theodor Viehweg and Ottmar Ballweg. Despite having a clear European genesis (referred to by
some as the “Rhetorical School of Mainz”), Brazilian jurists such as João Maurício Adeodato, Cláudia
Roesler, and Isaac Reis contribute in an original way to the understanding of Brazilian legal language.
Despite convergences, the authors also disagree on specific aspects of the scope of rhetoric and its
function in philosophy and legal practice. In contrast to Ottmar Ballweg's thinking, for example, João
Maurício Adeodato dissociates himself from the concept of truth as a necessary mark of philosophical
knowledge – representing rhetorical analysis as a “millennial method” that has been obscured by
“dominant ontologies” – especially by the rationalist forms of the modern period (Adeodato, 2020: pp.
267).
But what, after all, does the rhetorical approach to law consist of?
As argued by Katharina Sobota, the norm is not a prefabricated given, and language constitutes the only
possible legal reality. By asserting that “facts are clear”, there is only a jurist's argumentative trick to
persuade the message's recipient (Sobota, 1991: pp. 45-60). The real is just discourse – based on a claim
of will. Therefore, this perspective can be considered a philosophical conception that rejects any
essentialist or ontological stance – in the sense of fixing the essence of the being of things. If all we have
is rhetorical construction of language, then absolutely everything can be different tomorrow: it is enough
that the interlocutors understand it in their free communication.
In addition to being a philosophy, rhetoric can be seen as a methodology for approaching any subject. The
four initial characteristics of this approach are empirical perspective, ethnomethodological perspective,
the mismatch between signifiers and meanings as a starting point, and dissoi logoi.
For the rhetorical approach to legal practice, everything that can be analyzed is discourses and
interpretations. The assertion of facts, the nature of things, essences, or any other rigid category is just a
communication strategy. This becomes even stronger in legal cases because it is not possible to transport
oneself to the past moment of the alleged facts: they are events narrated by someone. Therefore, rhetorical
theory deals with the “conditions, effects, and patterns of behavior through which the law is rhetorically
produced” (Schlieffen, 2022: pp. 19-20).
It is important to clarify that discursive control of legal practice does not imply the naive belief that the
interpreter's impulses will be contained by the literalness of written texts. Possible hermeneutic
arbitrariness – which feeds some form of institutional authoritarianism – can be addressed through the
institutionalization of procedures and intersubjective control of language that occurs in social
communication itself (Adeodato, 2021: pp. 936). All this is strategically built in the struggles of social
life. In this sense, Katharina von Schlieffen emphasizes that there is a kind of “theatrical performance”
that involves behavior directed to an “audience” (Schlieffen, 2022: pp. 11).
Based on Ottmar Ballweg's formulations, rhetorical approaches present a didactic differentiation of three
levels on rhetoric: material, strategic, and analytical. Although the nomenclature may vary according to
authors, the proposal is relatively simple and already present in the philosophies of Aristotle and
Nietzsche (Ballweg, 1991: pp. 176-180). For a better understanding, let's develop a brief synthesis:
The first rhetorical level is understood as the “material reality” itself – constructed by discourses. In this
group, concepts, decisions made, and the attribution of meaning to things through language would be
included. It is the state of the art understood as a report. In this aspect, it can also be called “rhetoric as a
worldview” (Medeiros, 2018: pp. 25) or “existential rhetoric” (Adeodato, 2013: pp. 12). The world is
therefore understood dynamically as effective language and dominant narrative. A legal example for this
first category would be the predominant narrative about what tax means in Brazilian law.
The second level of rhetoric is considered from a methodological perspective: attempts to interfere and
influence material rhetoric through discourse. In the case of law, prescriptive theories of legal
interpretation and argumentation act as legal methodologies that attempt to discipline the attribution of
meanings of material rhetoric. In this case, it is no longer simply reported what tax means in Brazilian law
but the criteria for applying tax norms in practice. In this second group, “persuasive strategies” are placed
since the intention is to control legal practice and discipline individuals for real action (Reis, 2014: pp.
30).
Finally, the third level of rhetoric is sustained as “Analytical Rhetoric”, being the closest to what is
understood as science or episteme, as it groups all attempts at descriptive analyses of discourses. In the
terminology of Isaac Reis, this rhetorical level is called “Empirical-Rhetorical Analysis of Law (ERAL)”
(Reis, 2014: pp. 55-56). The extensive nomenclature, accompanied by an acronym that repeats throughout
its research, is also a rhetorical strategy to give an appearance of methodological seriousness.
In the same vein as Ottmar Ballweg's rhetorical triad, distinctions are made between method,
methodology, and methodics (Adeodato, 2013: pp. 11-29). Each, respectively, corresponds to the
problems of the three levels of rhetoric. Therefore, analytical rhetoric is understood as methodical and can
assist in the academic understanding of legal discourses.
Among the objectives of Analytical Rhetoric, it would be possible to examine the argumentative
strategies used in a specific case (second-level rhetoric), map the main trends and strategies for particular
cases, and even systematize data collected in legal discourses for proper comprehension (using graphs,
tables, etc.).
According to Cláudia Roesler, the approach of Analytical Rhetoric is focused on understanding the
effective legal discourses that shape the reality of jurists – constructed through language. Therefore, it
does not seek a prescriptive orientation based on rational parameters fixed in advance and universally
(Roesler, 2018: pp. 32). Thus, legal discourse is seen as a contested space between claims of meaning
through elements of the discourse itself.
As highlighted by Isaac Reis, there is no consensus on how rhetorical analysis should occur or what its
necessary elements are (Reis, 2014: pp. 52-53). This varies among authors. In fact, any attempt to rigidly
fix criteria would generate a contradiction. On the one hand, avoiding the rigidity of the analysis is
recognized, acknowledging that the proposal is also a provisional communicative construction; on the
other hand, the absence of a specific standard makes it insurmountable to differentiate it from other
supposedly descriptive analyses – so that every descriptive analysis of legal discourses becomes a form of
Analytical Rhetoric (Alves, 2022: pp. 145).
It can even be argued that the lack of standardization of criteria and steps shifts the argumentative burden
to the researcher in each specific situation. To illustrate, consider the following problem: Researcher P 1
decides to develop a scientific article mapping argumentative types in a specific session of the Jury Trial
aiming to build a suitable interaction with jurors (Pathos – discourse strategies for a good relationship
with the audience). On the other hand, Researcher P 2 decides to conduct another study on the same trial,
describing gestures and symbologies beyond the apophantic level of discourse. After all, rhetorical
strategies also manifest themselves latently (Sherwin, 2009: pp. 88).
We observe that, in the previous examples, all have a descriptive intention to understand the same trial;
thus, both studies could be considered rhetorical analyses of law (even if the researchers did not adopt this
specific theoretical framework). If every descriptive study of judicial decisions is considered Analytical
Rhetoric, there could be a qualitative loss of research methodology (Alves, 2022: pp. 145-146). Simply
asserting the use of Analytical Rhetoric by itself would not mean much, as it does not clarify the stages
and the mode of the approach; only the descriptive orientation. Therefore, each researcher must employ
strategic rhetoric to affirm the use of their criteria. To avoid confusion between types of research and
ensure adequate transparency in scientific texts, it is necessary to construct observation criteria and
explain the reasons for their use.
Despite its ostensibly descriptive nature, the rhetorical approach does not necessarily imply the validation
of arbitrary discourses. After all, language is understood as a social construct subject to intersubjective
agreements. Also, in the case of law, elements of discursive constraint overlap in certain historical
contexts (Sobota, 1991: pp. 45-60). Thus, what prevails today may not prevail tomorrow.
This assumption reveals a dynamic dimension of legal practice, necessitating contextualized analyses of a
specific practice. However, what is understood as description is also rhetorically constructed: one should
not forget that it is the third rhetorical level. Analytical Rhetoric, as the name suggests, remains rhetoric,
albeit with a distinct function focused on observing the strategies adopted in arguments. Therefore, the
possibility of argumentative clashes between two or more descriptive claims of the same discourse is also
envisaged. Nevertheless, the rhetorical approach is “tolerant” of diversity in positions (as it lacks a fixed
criterion, it would be incapable of definitively rejecting a position). Because it cannot establish a fixed
criterion of rationality for judgment, the analytical parameter is based on “regularities” and provisional
prevalences in a given social environment – in other words, the idea of a common ground of
argumentation, what is generally accepted in the communication of individuals in a given context.
In addition to qualitative analyses, rhetorical surveys on the decisions of the Supreme Federal Court over
a long period (1960-2016) are already used in publications claiming to demonstrate “irrational uses” of
authority arguments (Carvalho & Roesler, 2019: pp. 42-68). Indeed, demonstrating a lack of regularity in
the use of arguments may suggest a risk of irrationality and potential arbitrariness in decision-making
practice. Not that the use of arguments is random, but their differentiated use can also reveal unequal
legal treatment – substantiated in a political act – corroding the entire concept of the Rule of Law. Thus,
rhetorical research can stimulate a scenario of monitoring and further investigation into the real reasons
that may lead a judging body to decide in a certain way.
Having clarified the theoretical framework of the analytical rhetorical perspective, it is now time to
discuss the specific issue of “constitutional mutations” in judicial decision-making processes – whose
premises will be fundamental for the practical application of the investigation.

3. The problem of constitutional mutations in legal argumentation in decision-making: a rhetorical

perspective

The problem of constitutional mutations arises from a preliminary difficulty: admitting that the written
text remains the same, but its meaning has changed. Why would its meaning have changed? Is the
declaration procedure legitimate? These are some of the questions that still disturb constitutional jurists
today.
In a sense, the discussion about mutations is also related to the “paradigm of the revelation” of the
meaning of texts. As if the interpreter's role were to unveil and extract the meaning contained in the
words written by the legislator in the face of the text's lack of clarity. If the meaning had always been
placed by the legislator in those words, then it would indeed be very strange now to “unsay” the
legislative/constitutional command. On the other hand, if it were more readily accepted that the
application of the law involves concretization in the concrete event, according to its conditions and
factors, one could even conclude that the application is always different and that nothing remains entirely
identical. Obviously, this would not mean that the application of the law is ephemeral and random, as
jurists deal with the factors of regularity and coherence. But at least it would be admitted, as Peter
Häberle argued, that the concept of constitutional mutation is unnecessary when one understands that the
normative interpretation of the law is a matter related to its time of application (Häberle, 1974: pp. 11-
137).
The first major narratives about constitutional mutation are often situated in the German context of the
19th century. Jurists like Paul Laband were intrigued by the occurrence of numerous political events that
ignored or substantially modified the commands textually provided in the constitutional text of 1871.
Later, this conception would be considered a formalistic posture that did not consider the dynamic and
real development of the law (Hsü Dau-Lin, 1998: pp. 68-71).
Shortly thereafter, Georg Jellinek provided a broader systematization on the subject, differentiating
constitutional mutation (Verfassungswandel) from express constitutional reform (Verfassungsänderung).
The former would occur without intention, being a natural and informal process; the latter would be a
political and intentional choice of political agents. It is necessary to remember that Jellinek defended the
existence of a normative force of facts, so that the political world could modify legal expectations,
disregarding the prediction of legislative texts (Jellinek, 1991). During this period, the problem of
constitutional mutation was much broader, as it concerned any factor external to the law that guided the
political order to paths different from what had been foreseen by the constituent/legislator.
In this article, the intention is not to delve into the history of the idea of constitutional mutation – one of
the most complex themes that has given rise to a series of recent doctoral theses (Ajouz, 2018; Alves,
2021).
It is important to highlight, however, that the theory underwent very strong changes in the republican
period of Germany. One of the main changes was advocated by Konrad Hesse, who began to treat the
subject differently and more specifically: observing the changes that occurred “within the norm”, that is,
in the normative structure itself and not in factors external to the law (Hesse, 2009: pp. 25-29, 81-91).
Thus, the normative structure would correspond not only to the normative text (program of the norm) but
also to the normative scope (sector of social reality regulated by the norm, i.e., social reality) and the
decision norm to be issued by the competent authority.
In Brazil, however, different German theories were not always treated in a systematic way, even reaching
the point of being mixed with French approaches (such as Georges Burdeau's theory of diffuse power) or
Anglo-American approaches (Alves, 2021: pp. 127).
However, this first problem concerning constitutional mutation relates to the difficulty of clarifying what
exactly it means in concrete cases. We know that it is an informal change (in the sense that the written
text remains unchanged but is also promoted by authorities such as the judiciary), and that the text has
remained, but nothing is said entirely unanimously among the authors. This is already a material
rhetorical problem because it concerns the fragile understanding of its meaning.
Therefore, if there is a first difficulty in attributing meaning to constitutional mutation in Brazil, this is
partly due to the absence of a doctrinal and doctrinal tradition in dealing with the subject. Having arrived
more or less recently in Brazil and also due to the need that many authors feel to publish guidelines for
“Brazilian concurseiros” (individuals preparing for competitive exams in the Brazilian Institutions), they
end up trying to summarize what has been decided without always being able to systematize and
understand the subject. And when there is no legal doctrine to guide judicial practice, it ends up running
the risk of also getting lost in the examination of concrete cases.
On the other hand, it would also not be fair to say that doctrinal treatment is completely inexistent in
Brazil. This is why strategic rhetoric, both from the courts and constitutional legal doctrine, plays an
important social role in stabilizing expectations. In essence, this undertaking seeks to establish the
conditions and potential scenarios under which a constitutional mutation may be declared by the judiciary
or other institutions, providing a potential framework for forensic practice.
From the perspective of strategic rhetoric, it is possible to seek to examine guidelines formulated by legal
doctrine to establish legitimate paths for changing the interpretation of constitutional norms by competent
authorities. In Brazil, one of the pioneering works to differentiate illegitimate mutations as
unconstitutional was developed by Anna Cândida da Cunha Ferraz (1998).
Since his doctoral thesis on the subject, Adriano Sant'Ana Pedra has been trying to formulate “structuring
normative parameters” for constitutional mutations related, from Konrad Hesse's perspective, to the
normative program (such as the prohibition of social retrogression and the prohibition of abolition of
entrenched clauses), the normative scope (such as the “legitimate acceptance of society”), and also with
the decision norm itself (such as the production of prospective effects to safeguard legal certainty). All
these criteria can be described as strategic rhetoric – in the sense of intending to construct prescriptive
guidelines for the actions of jurists (Pedra, 2017: pp. 191-298).
From another perspective, the third rhetorical level is not concerned with determining the rules for the
occurrence of an “adequate” constitutional mutation but rather in observing how they have occurred or at
least how the subjects have declared their occurrence. In this sense, recently published research in Brazil
points to a growing use of the argument of constitutional mutation in very varied cases and situations
(Moraes, 2018: pp. 1-22).
At the end of this topic, the problem of the rhetorics of constitutional mutation proves to be of great
importance for the Brazilian legal reality. This is because two questions are crucial to the debate: a) the
abundance of meanings and different criteria for attributing a different meaning to constitutional norms;
b) the growing use of the argument of constitutional mutation by the judges of the Supreme Federal
Court.
In light of all these issues, the article examines how the argument of mutation was developed in a specific
case: the judgment of the Order in Criminal Action 937, concluded in 2018 by the Supreme Federal
Court. This specific case was selected because it is already discussed in Brazilian academic literature, and
it also involves a sensitive issue related to the criminal prosecution of political agents.

4. Application of Analytical Rhetoric to the specific case: legal argumentation of constitutional

mutation in the order matter of Criminal Action 937/RJ
With the aim of promoting and expanding the accountability of political agents, especially in the political
context of Operation Car Wash, the Supreme Federal Court also acted as an institution observing social
reactions. Considering the changes in society itself, some judges argued for the occurrence of a
constitutional mutation to attribute a new normative meaning to the “republican principle”. Thus, even in
the absence of an express provision in the Federal Constitution, the argument was constructed that the
said principle would prohibit strategies from State Constitutions to hinder criminal investigation and
prosecution of state political agents.
To go beyond the constitutional text, the justices of the Supreme Federal Court began to argue about a
supposed factual or perceptual mutation regarding the law. These changes would end up imposing a new
attribution of meaning to constitutional norms. In this way, there would be no sufficient reasons to
demand the maintenance of the precedents of the court itself.
In a brief review of the STF's jurisprudence portal, it is possible to find different cases involving a change
in the perception of the meaning of the republican principle to promote greater accountability of political
agents (Alves & Krell, 2022: pp. 2456-2463). Specifically, we chose to investigate the argumentation
produced in the Order Matter of Criminal Action 937/RJ.
The selection of this specific case is mainly due to the existence of significant divergence: in the
argumentation of then Justice Ricardo Lewandowski, the “delicate moment of redefining the course that
Brazil is going through” is highlighted. In this excerpt, he underscores that employing such a rhetorical
strategy within the realm of criminal proceedings may jeopardize procedural safeguards and imperil the
exercise of political rights.
By alerting to the issue of criteria for recognizing a constitutional mutation and its procedural adequacy,
Justice Lewandowski rhetorically constructs a barrier against the broadening of accountability for
political agents. Since the republican principle does not contain a fixed semantic essence, its redefinition
by judges could bring diverse effects to establish the dominant narrative (material rhetoric).
If the rhetoric of mutations is developed in a generic and abstract way in the context of criminal actions,
the plausibility of the argument loses strength, as the legal community may recognize this practice as
“arbitrary” or “activist”. To stay within the scope of this article, only the Supreme Federal Court's
argumentation regarding constitutional mutation from a rhetorical perspective will be discussed.
As discussed earlier, the perspective of Analytical Rhetoric does not impose the naive belief that the
constitutional text could control the legal interpreter. But this does not result in complete freedom for
judges. It must be recognized that legal argumentation institutionalizes and recognizes procedures,
offering a scope of reasoning that can always be challenged by the community but is there, previously.
In a sense, legal principles are propelled by linguistic disputes regarding what is currently perceived,
within the specific context, as temporarily predominant argumentation. While this dominance may persist
for an extended period, it is susceptible to swift replacement by a novel interpretation. After all, the future
is open, and it is up to the community to construct it.
Just as a comparative element, it is possible to recall the argumentation of Justice Gilmar Mendes in the
Order Matter of Action ADI 2675/PE (pp. 43-45): with the change in constitutional conception, a “new
assessment of the constitutionality of the law” is possible through the “constitutional mutation process”.
After all, according to the minister, there is no “self-binding” of the court to the foundations of previous
decisions because “this could mean a renunciation of the Constitution's own development”. However, he
argued, through properly ambiguous and vague expressions, that this can only happen with a “founded
critique of the previous understanding that explains and justifies the change”.
Note, therefore, that constitutional mutation through the Judiciary is a linguistic construction that imposes
a certain argumentative burden for decision justification: the need to recognize that a previous
understanding is being overcome due to changes promoted in the “realm of facts” or by new legal
conceptions. From a rhetorical perspective, the analysis understands that the “new facts” are, in fact,
linguistic accounts of the observation of the practical world. New factors may have arisen, such as the
advent of new technologies, but all of this is also an attribution promoted by communication itself – the
interpreter must justify their new perspective on legal relations.
In this passage of Justice Gilmar Mendes' reasoning, the emphasis on a critical dialogue with the old
position of the court can also be noted – allowing some degree of coherence in forensic decisions (even if
it is apparent coherence). The selection of factual circumstances and how they will be analyzed are, to
some extent, choices of the legal agent in their decision-making. Therefore, in this sense, constitutional
mutation can be seen as a topos of legal communication: a commonplace in legal discourse that allows the
development of an argumentation to convince the respective community about the establishment of a new
understanding of constitutional norms.
Well, from a simple claim of a “new conception” about the law, the Brazilian Court itself could reform its
understanding. In reality, this new conception is being constructed in the decision-making process by the
competent authority. It is not an objective datum external to language. In this sense, argumentation based
on the change of constitutional principles can serve to justify decisions that reshape the political
landscape.
Something similar had already occurred in the trial of Extraordinary Appeal RE 637485/RJ, regarding the
content of Article 14, §5 of the Brazilian Federal Constitution (political rights). In this decision, the
rapporteur, Justice Gilmar Mendes, pointed out that when modifying jurisprudence, the Court should
weigh and adjust the consequences of this mutation – especially when it concerns political rights and the
electoral process.
Through the rhetoric of constitutional mutations, normative contents such as the republican principle are
reconstructed by judges in each case. Thus, issues like the need for parliamentary authorization for the
removal of governors or the question of the restriction of “privileged forum” (by prerogative of function)
emerge as debates that can be redefined by Constitutional Jurisdiction in the future. However, not only in
Criminal Action 937 but also in other recent judgments, the rhetoric of constitutional mutation has been
used as a strategy to veto interpretative options that hinder the accountability of political agents.
In Criminal Action 937, the rhetoric of constitutional mutation was directly addressed in at least nine
votes. Yet, it is not possible to observe any consensus among the ministers on this matter. After all, what
meaning should be attributed to the legal norm from Article 102, I, b, of the Federal Constitution, which
deals with “privileged forum”?
The lack of objectivity is acknowledged, involuntarily or not, by the ministers themselves. During the
trial, rapporteur Justice Luís Roberto Barroso states:
“[...] I would identify it as a constitutional mutation in a technical sense,
which is when a constitutional court changes a consolidated understanding,
not because the previous one was necessarily wrong, but because the factual
reality has changed, or because the social perception of the law has changed,
or because the practical consequences of a jurisprudential orientation have
proven to be negative”. (Criminal Action 937, pp. 12)
Looking at it generically, Justice Barroso's argument is consistent with what is generally proclaimed in
undergraduate manuals. “Something” changed enough to allow a new interpretation of constitutional
norms, and such a change may have occurred in the realm of facts, socio-legal understanding of the law,
or even unjust consequences.
In the same Criminal Action, however, it is also possible to find different constructions regarding the
rhetorical sense of constitutional mutation. An example is the perspective presented by Justice Luiz Fux –
who expressly signaled the possibility of a “disregard for the literalness of the formal statement”. In other
words, he understood that in certain cases (without specifying or exemplifying which), changes would
justify overcoming the literal text of the Federal Constitution. To make his argument more plausible, he
used the term "relative disregard" – clarifying that it would not involve ignoring the texts absolutely:
“[mutation is] an institute that already has an important history of application
by this Supreme Federal Court, among whose precedents stands out, even for
the social relevance of the paradigm shift, ADI 4277, from which it was
understood that the protection consecrated to the institute of stable union
could be extended to the scope of same-sex unions. This is an alteration of
interpretative meaning that was not only adopted without any express
amendment to the constitutional text but was also, in truth, adopted in relative
disregard for the literalness of the formal statement, considering that, in
principle, Article 226, §3 initially established (and still establishes) that state
protection would only be granted to relationships between a man and a
woman”. (Criminal Action 937, pp. 202-205)
Thus, Justice Luiz Fux highlights a significant problem involving the possibility of constitutional
mutation, in certain cases, leading to a surpassing of the express literalness of normative statements – that
is, the choices made by the Brazilian constituent. However, at no point is it made clear to what extent
there could be a disregard for the constitutional text. What are the criteria? If the claims of social change
and new conceptions are deemed sufficient, then the rhetoric of constitutional mutation reveals itself as a
powerful mechanism wielded by constitutional courts – capable of constantly reconstructing the legal
universe.
In contrast, it is necessary to recall the criticism presented by Justice Ricardo Lewandowski regarding the
treatment of the discussion on constitutional mutation during a Criminal Action:
“It does not seem lawful to use an order - whose scope, by definition, has an
extremely limited range - to enable discussions about the meritum causae or
complex doctrinal matters such as, in the case at hand, those concerning the
controversial phenomenon of constitutional mutation. [...] The foundation
that there would have been a supposed constitutional mutation caused by
alleged 'dysfunctionality of the system resulting from procedural ups and
downs,' identified in a study by the Getúlio Vargas Foundation, with due
respect, does not seem either reasonable or even desirable in this delicate
moment of redefinition that Brazil is going through”. (Criminal Action 937,
pp. 321)
In this excerpt (Criminal Action 937, pp. 321, emphasis added), Justice Ricardo Lewandowski, beyond
addressing the procedural issue, also underscores the political and social component of the time of the
trial: “a delicate moment of redefinition that Brazil is going through”. Notably, a curious aspect of this
trial's timing is that the former President of the Republic, Luiz Inácio Lula da Silva, had been arrested
following a decision by Judge Sérgio Moro. Thus, the debate on the criminal accountability of political
agents stood as the main legal and political agenda of that moment.
Expressing disagreement with the characterization of constitutional mutations in the specific case, Justice
Gilmar Mendes criticized the opposing argument in the following terms:
“With due respect, in this case, we do not have a constitutional mutation but a
new and unconstitutional interpretation of the Constitution. Thus, I believe
that the proposed interpretation conflicts with the constitutional norm and
must be rejected”. (Criminal Action 937, p. 377)
We highlight the above passage because Justice Gilmar Mendes' vote makes a distinction between
“constitutional mutation” and “unconstitutional interpretation of the Constitution”, with the
“constitutional norm (established)” as the parameter. This is, in fact, a very old rhetorical strategy:
differentiating terms and words for distinct situations.
According to this argumentation, even if the literalness of the text is inherently incapable of controlling
the interpreter, there can be a strategic use of argumentation to reject a change in interpretation based on
it. Thus, a new understanding of the law can be quite controversial or difficult to reach a consensus
among the justices when there is an allegation of possible disregard for the constitutional text. Clearly, if
all judges claim not to be disregarding the constitutional text, then rhetorically they will decide as such.
On one hand, some justices accuse the erosion of constitutional guarantees in the name of a supposed
republican public interest. On the opposite side, the argument revolves around protecting the citizens'
guarantee to see their elected representatives immune to potential political persecution in specific cases
(thus relating to the themes of criminalization of politics and lawfare). In other words, it is a discussion
about the use of law for political purposes—a topic rich and complex in contemporary Brazilian affairs
but not addressed here.
Now, what factual changes or alterations in the understanding of the republican principle have occurred?
To the extent that they promote a significant constitutional mutation that ends up preventing the election
of public officials in different cities (“itinerant mayor”) or even to strengthen the accountability system
for public agents?
Relying on a statistical datum to justify the factual change will not render the legal issue indisputable. On
the contrary. It may prove to be a significant element to be considered, but other questions of justice and
legality must be evaluated in the decision-making process. Upon scrutinizing the votes, compelling
elements emerge, enhancing the pathos of the discourse by appearing to connect with either a fictional or
actual audience that demands accountability from public officials.
Indeed, various episodes of contemporary Brazilian politics could suggest a disillusionment of the
Brazilian people with politicians in these almost 35 years of the Federal Constitution: corruption scandals,
administrative misconduct, impeachment proceedings against two Presidents and different Governors,
unprecedented popular demonstrations, among many others. There is, in some way, a political and social
broth that cannot be ignored, as it influences legal and political practice—incapable of moving away from
its own context.
However, at the same time, political rights are fundamental rights that, in this condition, cannot be
restricted in any way. So, to what extent can broad and generic legal principles such as morality and the
republican principle justify extensive restrictions on political rights and expressed constitutional
guarantees?
Although the analysis of law is not limited solely to the textual elements of what has been pronounced
and decided, and can encompass many other factors, the analysis of these arguments in the context of the
Order Issue of Criminal Action 937 points to an examination that reinforces the rhetorical nature of
constitutional mutations as a linguistic construction with strategic effects.
After all these reflections, it is possible to examine some perspectives for legal practice based on the
results found in this rhetorical analysis of constitutional mutations in Criminal Action 937.

5. Challenges and opportunities for ongoing reflection on the role of jurists

In light of everything discussed thus far, it is possible to recognize that the effort towards an empirical
investigation of Brazilian law, despite its methodological plurality and challenges, can provide a relevant
path for understanding constitutional mutations from a rhetorical perspective.
Following the discussion on the objectives and assumptions of the realist perspective of rhetoric,
particularly with the adoption of Analytical Rhetoric, there was an extensive exploration of the issue of
mutations as an argument to legitimize the shifts in the positions of the courts, as well as the effects this
may have on criminal judgments – as seen in the specific study of the Order Issue in Criminal Action AP
937-QO/RJ.
After the brief case study on the argumentation of constitutional mutation, it is possible to speculate about
the challenges posed by this type of research and the potential role of jurists in the face of the issues
discussed in this article.
Among the effects of applying analytical rhetoric to decision-making processes, its ability to comprehend
the characteristics of legal reasoning becomes clearer. In this specific case, the constitutional mutation of
the legal principle of republicanism serves as a legitimization strategy for substantial changes in meaning
when the literalness of the texts remains the same. From a rhetorical perspective, the text has never been
able to control the interpreter – after all, the text does not hold an essential meaning, nor can it rigidly
maintain the same sense for every situation. The supposed literalness of written texts is also a rhetorical
strategy to provide an appearance of objectivity, making persuasion and convincing the selected audience
easier.
In cases like the one analyzed in Criminal Action 937, an analytical and descriptive perspective allows
different observers to reflect on expectations of regularity – that is, what has generally been accepted as a
requirement or condition for identifying a constitutional mutation. It is not a matter of right or wrong, true
or false, but rather something recurrent/regular or sporadic/irregular. However, even exceptional or
sporadic situations can be justified in a particular case when other argumentative strategies are used –
based on some general guideline that creates an image of predictability.
For a normative-dogmatic perspective, the adoption of analytical rhetoric alone may be incomplete or
unsatisfactory, as it has no prescriptive aspirations. On the other hand, a more skeptical or realistic
analysis would only seek to examine how things are functioning in legal argumentation and whether this
occurs more or less regularly.
Therefore, analytical rhetoric is challenged, to some extent, by the need to establish criteria for checking
the utility or quality of the premises and conclusions adopted in decision-making. In this case, each
observer (whether a lawyer, an academic, or any other individual) bears the argumentative burden to
explain the adoption of a criterion and how it was employed in the analysis. Thus, analytical rhetoric can
be seen as a method or metalanguage with the function of attempting to understand different narratives.
This does not imply that it can achieve an ideal degree of neutrality and objectivity, as such concepts are
considered unattainable or, at least, unnecessary in a rhetorical analysis.
Considering this scenario and the possibilities of understanding through analytical rhetoric, cases like the
justification of constitutional mutations allow for a critical observation of the potential "role of jurists": if
they wish to act in the practical world autonomously, there is a need to develop a situational empirical
perspective on issues. From a rhetorical standpoint, the jurist shapes the reality of the law through specific
language, constructing arguments and categories that do not correspond to objective facts but rather relate
to linguistic events and narratives. Therefore, constitutional mutation emerges as one of the main
justification strategies for altering the interpretation of constitutional legal norms.
As this tool is increasingly employed by jurists, especially in the context of a higher court like the
Supreme Federal Court, its importance grows, leading to a duty of alertness and monitoring in the
academic environment. After all, jurists have a role related to stabilizing expectations and having
contingent control/domination over legal reality. To achieve this, they need to make an effort to
understand reality, examining the nuances of justifications in each specific case and constructing
reasoning that instructs them for future cases.
Moreover, even though analytical rhetoric does not prescribe how decisions should be made, its
comprehensive nature allows each observer, with their autonomy, to understand the actual functioning of
the law. As it enables them to know the reality they are in (the "ground they stand on"), it also provides
them with insights for future action or reflection on national and local issues in legal practice. Therefore,
analytical rhetoric should not be seen as a tool to annihilate strategic rhetorics – which also serve a
guiding function in the practical world – but rather to unveil different strategies and promote a critical
perspective free from rigid axioms and unjustifiable essentialisms.

6. Final considerations

At the conclusion of this research, an unprecedented analysis of constitutional mutations from a topical-
rhetorical perspective, particularly with the premises of Analytical Rhetoric, has been crafted. Given that
this discussion has been extensively developed by foreign authors such as Ottmar Ballweg and Brazilian
scholars like João Maurício Adeodato and Cláudia Roesler, adopting a rhetorical perspective in this
article allows for an examination of its advantages and limitations.
Confronted with a significant issue related to the risk of legitimizing judicial decisions through the use of
seemingly technical arguments, Analytical Rhetoric prompts a reflection on the need for a critical and
skeptical view of the justifications for constitutional mutations, considering them as rhetorical strategies
to legitimize discourse. In this case, through practical application in Criminal Action 937, the article
explored how the rhetoric of constitutional mutations, especially in criminal matters and those related to
political rights, triggers a high degree of divergence – even among Supreme Federal Court justices. It
does not, therefore, prove to be a persuasive argument capable of building easy or near-consensual
agreements.
By applying a rhetorical examination to the issue of constitutional mutations in Brazilian legal practice, it
became possible to visualize how decision-making strategies have functioned in the Brazilian judicial
environment and to examine some limitations of this type of rhetorical-analytical observation.
Finally, the research also reflected on the latent potential of the role that jurists may come to play, as they
increasingly seek to understand the actual functioning of legal practice – dismantling illusions and freeing
themselves from strategies based on idealizations of alleged essences that lack foundation. Thus, enabling
each jurist, with their free autonomy to construct their criteria, to reclaim their creative potential for
decision-making based on what actually happens in the country.

Conflicts of Interest
The authors declare no conflicts of interest regarding the publication of this paper.

References

Adeodato, João M. (2013). Retórica analítica como metódica jurídica. Argumenta, 18, pp. 11-29.

Adeodato, João M. (2020). Análise retórica das dicotomias tradicionais sobre o conceito de direito.
Cadernos do Programa de Pós-Graduação em Direito – PPGDir./UFRGS, 14, pp. 266-287.

Adeodato, João M. (2021). O esvaziamento do texto e o controle das decisões jurídicas. Revista Direito e
Práxis, 12, 2, pp. 915-944.
Alves, Pedro de O. (2021). Mutações constitucionais nos discursos jurídicos: o problema da evolução do
direito na teoria da decisão a partir do Racionalismo Crítico. Ph.D. thesis in law. Recife: Federal
University of Pernambuco.

Alves, Pedro de O. (2022). Retórica analítica x Racionalismo crítico: reflexões sobre dois possíveis
modelos de análise de decisões judiciais. Revista Acadêmica (UFPE), 94, pp. 142-159.

Alves, Pedro de O. & Krell, Andreas J. (2022). Zonas de Autarquia na Argumentação Jurídica do STF.
Revista Direito e Práxis, 13, pp. 2444-2470.

Ballweg, Ottmar (1991). Retórica analítica e direito. Trad. João Maurício Adeodato. Revista Brasileira de
Filosofia, 163, p. 179-180.

Brazil (2018). Supreme Federal Court. Matter of Order in Criminal Action 937/RJ. Justice Roberto
Barroso, Full Bench, judged on May 3, 2018, DJE. December 11, 2018. Available at:
<https://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=748842078. Accessed on July 6,
2023.

Carvalho, Angelo G. P. & Roesler, Claudia R. (2019). O argumento de autoridade no Supremo Tribunal
Federal: uma análise retórica em perspectiva histórica. Direito, Estado e Sociedade, 55, pp. 42-68.

Ferraz, Anna C. C. (1986). Processos informais de mudança da Constituição. São Paulo: Max Limonad.

Häberle, Peter (1974). Zeit und Verfassung: Prolegomena zu einem “zeit-gerechten”

Verfassungsverständnis. Zeitschrift für Politik, Nomos, 21, pp. 111-137.

Hesse, Konrad (2009). Temas fundamentais do direito constitucional. São Paulo: Saraiva.

Hsü Dau-Lin (1998). Mutación de la constitución. Trad. Pablo Lucas Verdú e Christian Förster. Instituto
Vasco de Administración Pública: Oñati.

Jellinek, Georg (1991). Reforma y mutación de la Constitución. Trad. Christian Förster. Madrid: Centro
de Estudios Constitucionales.

Medeiros, Bruno Franco Candido (2018). O que os juízes acham persuasivo? Uma análise empírico-
retórica de decisões proferidas no âmbito do Tribunal Superior do Trabalho em matéria de dano moral.
Master in Law Thesis. Brasília: University of Brasilia.

Pedra, Adriano Sant’Ana (2017). Mutação constitucional: interpretação evolutiva da Constituição na

democracia constitucional (3rd ed). Rio de Janeiro: Lumen Juris.

Reis, Isaac Costa (2014). Limites à legitimidade da Jurisdição Constitucional: análise retórica das Cortes
Constitucionais do Brasil e da Alemanha. PhD Thesis in Law. Recife: Federal University of Pernambuco.

Roesler, Claudia (2018). A análise da argumentação judicial em perspectiva crítica: o que fazemos
quando analisamos decisões judiciais? In: Retórica e Argumentação jurídica: modelos em análise.
Curitiba: Alteridade.

Schlieffen, Katharina Gräfin von (2022). Iluminismo retórico: contribuições para uma teoria retórica do
direito. Trad. João Maurício Adeodato e outros. Curitiba: Alteridade.

Sherwin, Richard (2009). The narrative construction of legal reality. Journal of the Association of Legal
Writing Directors, 6, pp. 88.

Sobota, Katharina (1991). Don’t mention the norm. International Journal for the Semiotics of Law, 10,
pp. 45-60.