Deconstructing the Antenna Judge: Systems Theory, Procedural Garantism, and the Structural Pathologies of Contemporary Adjudication
The Ontological Crisis of the Legal System and the Myth of the Antenna Judge
By GEMINI AI
The contemporary legal system is currently navigating a period of profound ontological instability, characterized by a tension between the need for operational closure and the increasing pressure for social responsiveness.
This crisis is most vividly captured in the critique of the "antenna judge," a metaphor derived from Brazilian procedural instrumentalism that describes a magistrate capable of capturing social impulses to correct the law.
As articulated by Antonio Carvalho Filho in his analysis titled "The antenna judge and the collapse of the legal system," published on April 6, 2026, in the legal journal Consultor Jurídico (CONJUR), this metaphor represents a significant departure from the autonomous logic of law.
The analysis suggests that the legal system is undergoing a "silent revolution" where the traditional boundaries of adjudication are being dissolved by the influx of external moral, political, and economic codes.
To understand the gravity of this shift, one must refer to the systems theory of Niklas Luhmann, which posits that law functions as an autopoietic system.
In his foundational work, Law as a Social System (2004), Luhmann argues that law maintains its identity through a specific binary code: legal versus illegal.
This operational closure ensures that the law remains independent of other social subsystems, such as politics (coded by power) or the economy (coded by payment).
The antenna judge, however, seeks to bypass this code, acting as a "natural manager of the common good" and a "providence for his people," as envisioned by Cândido Rangel Dinamarco in his seminal work A Instrumentalidade do Processo.
This conception shifts the focus of the judicial process from its primary function of limiting state power to becoming an instrument of an omnipotent jurisdiction.
The figure of the antenna judge is described as a "true aberration" within the legal system because it assumes a level of cognitive and moral privilege that is fundamentally superhuman.
Systems theory demonstrates that social complexity prevents any single observer from accounting for the totality of communicative operations within a society. Consequently, the antenna judge’s claim to embody the "sentiment of society" is a sophism.
In reality, the judge reads events through the lens of their own worldview (Weltanschauung), which is inevitably partial and biased by personal convictions. This transition from law to subjective morality opens the door to voluntarism, decisionism, and solipsism, phenomena that are increasingly prevalent in the contemporary judiciary.
Theoretical Paradigm
Source of Authority
Primary Binary Code
Judicial Role
Procedural
Instrumentalism
Social Utility / Common
Good Just / Unjust
(Subjective) Social Manager /
"Antenna"
Theoretical Paradigm Source of Authority Primary Binary Code Judicial Role
Procedural Garantism Constitutional Legality Legal / Illegal
(Objective) Counter-Majoritarian
Guardian
Systems Theory
(Luhmann) Operational Closure Legal / Illegal
(Functional) Stabilizer of
Expectations
Normative Fragmentation and the Colonization of Law by Morality
The structural integrity of the legal system is compromised when morality begins to colonize the legal code.
In a constitutional state, the evaluation of "just" versus "unjust" is typically the purview of an external observer operating from a moral or political standpoint, not the judge.
When a judge feels authorized to discard the law because it conflicts with their personal sense of justice, they subvert the supremacy of law and the constitutional order.
This normative problem is particularly acute in the Brazilian legal system, where the antenna judge metaphor suggests that the law should conform to what the interpreter wants it to be rather than what it is.
According to the autopoiesis of law, judicial decisions shape the representation of positive law.
A judge who bases decisions on "environmental disturbances" forces an opening in an originally closed system, leading to its fragmentation.
This disintegration causes the legal system to lose its specific meaning, as it starts to operate within the systems of politics, economics, or religion rather than its own.
The consequence is a "total disintegration" where the system effectively becomes the environment, increasing social complexity rather than managing it.
Furthermore, the "humanization" of the judge sought by instrumentalism is criticized for creating a "superman complex".
As noted by André Del Negri in Constitutional Theory and Constitutional Law (2016), the image of a judiciary that harbors authority figures in the form of a "Father" creates an unhealthy institutional psychology.
To truly humanize the judge, it is necessary to rescue the condition of human fallibility.
This means limiting the judge to established law and constitutional legality as a form of objective control over their acts.
The judge does not possess a "republican-democratic authorization" to judge from a position of moral enlightenment, as judges are as biased and prone to error as any other human being.
The Counter-Majoritarian Function and the Counter-Antenna Judge
The principle of counter-majoritarianism is central to the paradigm of the judge's adherence to the normative statements of the Constitution and the law.
In this view, the law constrains everyone, including the judge. The formation of a legal norm through interpretation must transit through the legal-normative path, not the path of morality. When law is made to yield to morality in judicial judgments, the counter-majoritarian guarantee—a pillar of due process—is annihilated.
The "counter-judge-antenna" is a figure that exercises judicial independence with republican pride, shielded from social pressures. Unlike the legislative or executive branches, the judiciary has no political commitment to satisfying the immediate desires of either the majority or the minority. Its sole jurisdictional function is to judge according to constitutional legality.
This distinction is vital for maintaining the separation of powers.
Only the Legislative Power possesses the popular legitimacy to mediate between the subsystems of morality, politics, and economics to create laws.
Once those laws are created, the judge is forbidden from re-interpreting them based on morality, as this would consolidate the powers of the judiciary and the legislature in a single hand, leading to the arbitrary exercise of power.
The source of legitimacy for the "State-Judge" is legal-representative, which presupposes a total subjection to the law. Decisions must operate only within the framework of law. The openness promoted by instrumentalism, however, leads to a loss of control over jurisdiction, producing "pitjudges"—total judges who violate impartiality, initiate investigations ex officio, and seek a "real truth" that society supposedly demands. This judicial protagonism is sold as "modernity," but it actually carries an "authoritarian mold".
The Frankenstein Effect: Instrumentalism and Its Consequences
Antonio Carvalho Filho uses Mary Shelley's Frankenstein as an allegory for procedural instrumentalism. Just as Victor Frankenstein was obsessed with creating a beautiful and grand life form only to reject the "creature" that actually emerged, the proponents of instrumentalism, such as Dinamarco, conceived of the antenna judge as a "grandiose figure"—a sensitive magistrate anointed as the "providence of his people".
However, the reality of this theory is the "pitjudge," characterized by decisionism, solipsism, and the subversion of constitutional competencies.
Instrumentalism has served as a springboard for a "silent revolution" that defies the Constitution and introduces revolutionary ideals into the social superstructure.
This doctrine is constructed from the perspective of power and for power, maintaining its influence through cultural hegemony and a disregard for critical debate. Three key points are essential for understanding the legacy of instrumentalism:
1. Instrumentalism is not a theory about the process as a fundamental right; it is a theory about power.
2. Subsequent publicist theories in Brazil are built upon instrumentalist premises.
3. The concept of a "fair process" currently hegemonic in national doctrine is itself a theory about power.
Without an objective definition of what is "just" and without criteria for controlling decisions, the appeal to "justice" becomes a tool for autocracy, or what Ran Hirschl has called "juristocracy" in Toward Juristocracy: The Origins and Consequences of the New Constitutionalism (2007).
The legitimacy of jurisdiction must stem from respect for constitutional competencies and fundamental procedural rights.
Instrumentalizing the process in favor of an omnipotent jurisdiction subverts its reason for being, which is to protect the legal sphere of individuals against state abuse.
Broadening the Critique: From the Antenna Judge to Article 35 of LOMAN
The critique of judicial voluntarism must extend beyond the theoretical construct of the antenna judge to the concrete duties of the judicial office. Article 35 of the Lei Orgânica da Magistratura Nacional (LOMAN), established by Lei Complementar 35/1979, defines the mandatory conduct for Brazilian magistrates.
A judge is not merely a free interpreter of social will; they are a public official bound by duties of legality, exactitude, procedural diligence, and irreproachable conduct.
When a judge violates these positive duties—by delaying decisions without justification, failing to ensure regular procedural movement, or mistreating counsel—the issue is no longer just a matter of dubious legal philosophy. It becomes a concrete distortion of the judicial function.
The "collapse" described by Carvalho Filho is thus not only hermeneutic but also institutional and disciplinary.
The progression from the antenna judge to the "LOMAN Article 35 judge" leads ultimately to the most severe pathology: the "judge for sale".
This represents the absolute negation of constitutional jurisdiction, where the judgment is converted from a reasoned public act into a commodified merchandise.
Judicial independence is a guarantee intended to protect judges from improper pressures so they may remain faithful to the Constitution.
It is not a license for sovereign irresponsibility or venality.
A strong judiciary is one that is limited by legality, due process, and accountability.
This broader significance connects the Brazilian doctrinal debate to a transnational pattern where courts in various jurisdictions are being described as centers of structural abuse when adjudication is detached from ethical and legal limits.
Structural Abuse in Foreclosure Adjudication: The Stafne Analysis
The phenomenon of structural abuse is not confined to the Brazilian context.
In the United States, specifically within the Washington state court system, similar concerns about the "structural integrity" of the judiciary have been raised by Scott Erik Stafne.
Stafne, acting as counsel for property owners in foreclosure-fraud litigation, has argued that changes to judicial-retirement and court-funding systems adopted in 2007 created "structural financial conflicts".
These conflicts allegedly incentivize judicial officers to favor the enforcement of mortgage-backed securities, in which the political branches have invested billions of dollars. Stafne’s arguments rely on the principle of judicial neutrality established in Tumey v. Ohio (1927).
He contends that if a judge is financially incentivized by the state's retirement structure to maintain the stability of certain financial assets, it creates a "probability of actual bias" that is constitutionally intolerable under the Due Process Clause.
This represents a "structural limitation on judicial power itself," where the court ceases to be a neutral arbiter and becomes a conduit for institutional force.
Furthermore, Stafne points to a breakdown of the "adversarial framework" in these cases.
He alleges that courts have permitted purported beneficiaries to intervene and affirm judgments without filing the necessary operative pleadings, thereby depriving petitioners of a fair contest. By proceeding without an adversarial development of issues, the courts violate the
"party-presentation principle," which dictates that courts should decide only the issues framed by the parties.
The refusal of courts to address properly submitted constitutional and statutory objections is described as "treason to the Constitution".
Jurisdictional Challenge Core Argument Source / Reference
Financial Conflict 2007 retirement system creates bias toward state-invested securities. Stafne v. Bank of New York
Mellon
Procedural Breakdown Courts permitting intervention without required pleadings (CR 24c). Stafne v. Quality Loan Service
Corp
Neutrality Inquiry Due process requires threshold Tumey v. Ohio / Stafne
Jurisdictional Challenge Core Argument Source / Reference
inquiry into judicial financial interest. Petitions
Institutional Force Courts act as enforcers of debt rather than neutral arbiters. Plumb v. U.S. Bank
These claims illustrate a recurring theme: foreclosure adjudication can become structurally skewed when courts treat core questions of standing, title, and notice as secondary to the interests of institutional actors.
This aligns with the "antenna judge" critique, as it shows how adjudication can drift into discretionary power when it abandons the discipline of legality.
The Guardianship Industry and the "Perfect Crime" of Probate
In the realm of probate and guardianship, structural abuse takes the form of a "parallel system of justice" that preys on the elderly. Dr. Sam Sugar, founder of Americans Against Abusive Probate Guardianship (AAAPG), has extensively documented how these systems can strip citizens of their constitutional rights under the guise of "protection".
In his book Guardianships and the Elderly: The Perfect Crime (2018), Sugar describes a process where court-appointed guardians are granted broad authority over an individual's finances, medical care, and living conditions, often resulting in financial exploitation.
The US Senate Special Committee on Aging has acknowledged these issues, noting that "unscrupulous guardians acting with little oversight" have used guardianship proceedings to liquidate the assets of vulnerable individuals for their own benefit.
The committee found that while all states have laws to protect due process, these are not always consistently enforced, and guardianships are frequently imposed without full knowledge of the responsibilities involved.
Once a guardianship is established, rights are rarely restored, and there are few safeguards against individuals who choose to abuse the system.
Sugar identifies the "equity court structure" as a contributing factor, where judges, guardians, and their associates operate within a system that seems designed to generate billings from a ward's assets.
Estimates suggest that at least 1.3 million older adults and people with disabilities in the US are under official guardianship, controlling at least $50 billion in assets. This environment, characterized by opacity and weak accountability, allows for "crimes and ethical violations" to occur with the appearance of legality.
The comparison to the "antenna judge" is sharp: the probate judge often acts as a "saving" power that bypasses the ward's autonomous legal documents and rights in favor of a discretionary, moralized vision of what is "best" for the individual.
Institutional Racism and the Collapse of Adjudicative Credibility
The guardianship of OMANA THANKAMMA, and the institutional persecution against his son, Jayakrishnan K. Nair, further illustrates the perception of structural failure within the judiciary, framed through the lens of institutional racism and corruption.
In his petitions to the Washington State Supreme Court, Nair alleges that "shameless criminals" masquerading as HOA lawyers and judges are "infesting the state courts".
He describes the Washington court system as being compromised by "nauseating corruption" and "subversive abuse of the vast, unmitigated powers of the judiciary".
Nair specifically alleges that he was scammed into a "FRAUD Chapter 11 bankruptcy" and that his million-dollar properties were sold for "pennies on the dollar" in fraudulent sheriff sales regarding HOA dues.
He categorizes these actions as "racist hate crimes" and "legal terrorism," claiming that his success as an immigrant made him a target. His experience highlights a systemic collapse where parties no longer perceive law’s constraints as real.
He even notes that the Court of Appeals confused the identities of the parties and referred to a "non-existing transcript" as proof of institutional incompetence.
While these are the allegations of a litigant, their significance lies in how they reflect a broader loss of public trust in the integrity of the courts.
The "antenna judge" who operates beyond the legal/illegal code inevitably invites accusations of bias and corruption because there are no objective metrics to control their decisions.
When the judiciary ceases to be bounded by law, it starts to operate as a discretionary power that is susceptible to the "predatory racism" and "self-dealing" described by Nair.
Family Court Violence and Systemic Misconduct
The critique of structural judicial abuse reaches a critical point in the context of family courts. A conference titled "The Hidden Epidemic of Family Court Violence," featuring Bruce Fein and Dr. Bandy Lee, argues that family courts have become "centers of systemic judicial misconduct".
The organizers claim that an "unchecked process" has led to widespread injustices and constitutional violations that devastate millions of families.
The conference identifies several "structural flaws" that invite abuse:
● Blanket Secrecy: The use of unconstitutional gag orders and prior restraints that prevent public scrutiny of judicial acts.
● Routine Due Process Violations: A failure to adhere to traditional procedural safeguards.
● Unqualified Experts: The reliance on poorly trained individuals to provide "expert" testimony that dictates the fate of children and parents.
● Judicial Incompetence: A lack of legislative oversight and accountability for misconduct.
Bruce Fein, a celebrated constitutional attorney, and Dr. Bandy Lee, a forensic psychiatrist, advocate for a "Uniform Family Court Code" to address these deficiencies.
Their work treats family-court breakdown not merely as a series of individual mistakes but as a systemic "legal-system problem".
This aligns with Carvalho Filho’s warning that a judiciary that views itself as a "saving" power—ignoring the limits of its office to "do justice"—eventually produces a system characterized by "epidemic violence" and "devastation".
Synthesis: Three Levels of Judicial Pathology
The comparative analysis of Brazilian and American judicial environments reveals three distinct levels of pathology that contribute to the collapse of the legal system.
Each level represents a further detachment from the constitutional role of the judiciary.
1. Voluntarism (The Antenna Judge): The judge replaces the legal/illegal code of the law with a personal moral or social code. In this stage, the judge imagines themselves as a "providence" for the people, correcting the law to achieve a subjective "justice."
This results in the "colonization of law by morality" and the loss of legal predictability.
2. Institutional Abuse (The Article 35 Judge): The judge abandons the positive duties of the office, such as diligence, exactitude, and civility.
This is seen in cases of unjustified delay, "pitjudge" aggression, and the disregard for procedural formalities. The court becomes a forum where the law is "theater" while outcomes are driven by institutional habit or ideological predisposition.
3. Corruption (The Judge for Sale): In the most extreme cases, the judicial function is commodified. Adjudication is no longer grounded in reasons but in price. This is the absolute negation of jurisdiction and the final stage of institutional decay.
Pathology Level Primary Violation Conceptual Figure Impact on System
Level 1 Hermeneutic/Moral Antenna Judge Fragmentation /
Solipsism
Level 2 Disciplinary/Duty Article 35 / Pitjudge Structural Abuse /
Injustice
Level 3 Ethical/Criminal Judge for Sale Total Collapse of
Credibility
The evidence from foreclosure, probate, guardianship, and family court across different jurisdictions suggests that these pathologies are not isolated. They describe a judiciary that has ceased to be a neutral guarantor of legality.
The complaints of Scott Stafne, Sam Sugar, Jayakrishnan Nair, and Bruce Fein all point toward a shared "structural anxiety": that courts have become insulated from the very laws they are meant to uphold.
Conclusion: Reclaiming the Autonomy of the Legal System
The critique provided by Antonio Carvalho Filho serves as a vital reminder that a constitutionally strong judiciary is a limited one.
The "antenna judge" metaphor, by elevating the magistrate to a position of mystical moral capture, creates a model of power that is inherently uncontrollable and prone to abuse.
For the legal system to survive its current "collapse," it must reject the instrumentalist view of the process as a tool for "saving" power and return to the garantist view of the process as a fundamental right that limits the state.
To humanize the judge is not to grant them the power to ignore the law in the name of justice, but to subject them to the same legal and ethical constraints as every other citizen.
This requires a rigorous adherence to the duties outlined in Article 35 of LOMAN and a commitment to the counter-majoritarian function of constitutional adjudication. The legitimacy of the judge depends on their subjection to the law, not on their personal charisma or perceived social sensitivity.
The transnational evidence of structural abuse in foreclosure and guardianship systems demonstrates that the "silent revolution" is a global phenomenon.
When courts are allowed to operate with unchecked discretion and opaque procedures, the legal system inevitably becomes a conduit for institutional force rather than a guardian of rights.
The path forward requires a re-differentiation of the legal system—restoring its operational closure and ensuring that the legal/illegal code remains the only metric for judicial decision-making. Only by abandoning the myth of the antenna judge can the judiciary reclaim its credibility and fulfill its role as a neutral arbiter of constitutional legality.
Referências citadas
1. The Hidden Epidemic of Family Court Violence | National Press Club, https://www.press.org/events/hidden-epidemic-family-court-violence
2. Lei Complementar 35/1979 - Terminal - Sophia Biblioteca Web - TJRJ,
https://www3.tjrj.jus.br/sophia_web/acervo/detalhe/116459?integra=1
3. Precisamos falar sobre o instrumentalismo processual - Revistas UNIPAM,
https://revistas.unipam.edu.br/index.php/jurisvox/article/download/4364/2039/13394
4. Lei Complementar nº 35 de 14/03/1979 - Legislação Federal - Senado Federal,
https://legis.senado.leg.br/norma/540740
5. Case No. 100394-3 IN THE SUPREME COURT OF THE STATE OF WASHINGTON Joshua C. Plumb & Kameron F. Plumb, et al., Appellants/De, https://www.courts.wa.gov/content/petitions/100394-3%20Church%20of%20the%20Gardens,% 20et%20al%20Amicus.pdf
6. Guardianship: Crimes and Ethical Violations with Dr. Sam Sugar - Voices in Bioethics Podcast,
https://voicesinbioethics.podcasts.library.columbia.edu/podcast/guardianship-crimes-and-ethical-violations-with-dr-sam-sugar/
7. Strengthening State Efforts to Overhaul the Guardianship Process and Protect Older Americans,
https://www.aging.senate.gov/imo/media/doc/Guardianship%20Report.pdf
8. Artigo 35 - Lei Orgânica da Magistratura Nacional / 1979 - Modelo Inicial,
https://modeloinicial.com.br/lei/LCP-35-1979/lei-organica-magistratura-nacional/art-35 9. Lei Complementar nº 35 de 14 de Março de 1979 (Poder Legislativo) - Portal da Câmara dos Deputados,
https://www2.camara.leg.br/legin/fed/leicom/1970-1979/leicomplementar-35-14-marco-1979-36 4957-norma-pl.html
10. 2026.02.05. Petition for Discretionary Review - No. 86886-1-I, https://www.courts.wa.gov/content/petitions/1050291%20Petition%20for%20Review.pdf
11. Guardianships and the Elderly: The Perfect Crime by Sam, MD Sugar, Paperback | Barnes & Noble®,
https://www.barnesandnoble.com/w/guardianships-and-the-elderly-sam-md-sugar/1128330360
12. Guardianships and the Elderly: The Perfect Crime - Sam, MD Sugar - Google Books, https://books.google.com/books/about/Guardianships_and_the_Elderly.html?id=FSisDwAAQBA J
13. Fighting Against Abusive Probate Guardianship - SSS Legal & Consultancy Services, https://ssslegalconsultancy.com/fighting-abusive-probate-guardianship/
14. In the Supreme Court for the State of Washington - Washington Courts,
https://www.courts.wa.gov/content/petitions/100783-3%20-%20Petition%20for%20Review.pdf
15. NO. 100783-3 SUPREME COURT OF THE STATE OF WASHINGTON THE MEADOWS OWNERS ASSOCIATION, Plaintiff, v. JAYAKRISHNAN K. NAIR and JAN,
https://www.courts.wa.gov/content/petitions/100783-3%20Answer%20to%20Petition%20for%20
Review.pdf
16. IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON THE MEADOWS OWNERS ASSOCIATION, a Washington non-profit corporation, Plaintif, https://www.courts.wa.gov/opinions/pdf/817540%20order-caption%20and%20opinion.pdf
An AI CHATGPT COMPARATIVE analysis of the article:
The antenna judge and the collapse of the legal system.
SOURCE: CONJUR
In the previous article in this series, Law Between System and Chaos , the fundamental elements of Niklas Luhmann's systems theory and its importance for understanding law as an autonomous social system were presented. [1] It was demonstrated that law operates with its own binary code — lawful/unlawful —, that operational closure guarantees its autonomy, and that communication with the environment occurs through structural coupling. It was then anticipated that these premises would be essential for the critical analysis of one of the most emblematic figures of Brazilian procedural instrumentalism: the antenna judge.
The metaphor of the judge-antenna, as conceived by Dinamarco, synthesizes the instrumentalist ideal of a magistrate capable of capturing the influxes of social will and, based on them, correcting the established law, acting as a “natural manager of the common good” and “providence for his people”. [2] It is the most complete expression of a theory that, under the pretext of achieving justice, shifts the process from its function of limiting power to transforming it into an instrument of an omnipotent jurisdiction.
The figure of the antenna judge represents a true aberration within the legal system. [3] Only a judge with great cognitive privilege, superhuman, mystical and endowed with capacities akin to a Greek demigod would have the necessary attributes to carry out the proposed operation. The figure is much closer to a character from a dystopia than to the immanent humanity of the magistrate.
An impossible synthesis of social influences.
The mythification of the judge-antenna, as a subject capable of capturing justice through the moral impulses of society, represents an inescapable sophism. [4] It is simply impossible for anyone to be able to embody the synthesis of the influxes of justice from a society as plural as ours. Systems theory demonstrates that social complexity prevents a single observer from accounting for the totality of communicative operations. [5]
At most, the judge, like any person, can, from his worldview ( Weltanschauung ), read all other events through that lens. However, this does not correspond to the “sentiment of society”. [6] His lens will always be partial and biased based on his a priori convictions. The instrumentalist judicial action, based on justice for pacification, is the open door to voluntarism, decisionism and solipsism, phenomena that are increasingly present in the Judiciary.
The legal system, due to its normative operation based on the legal/illegal binary code, must promote decisions based on this metric, even though, for the external observer, this means enormous injustice. [7] The evaluation between just and unjust is a matter for the external observer, who can operate from the moral code or another code that he sees fit. However, this operation is not within the judge's purview.
Normative problem: colonization of law by morality
The judge-antenna harbors a serious normative problem. He massacres the law based on morality, in the name of social “legitimacy.” When the law is in conflict with “justice”—what the judge thinks justice is—let the law fall and “justice” be done. This totally subverts the Brazilian legal-constitutional system, based on the supremacy of law. [8] If this metaphor prevails, the law would conform to what the interpreter wants it to be and not to what it is.
It is necessary to understand that the judge operates within the concretization of the legal/illegal binary code. Their decisions, by virtue of the autopoiesis of law, shape representations of positive law. The judge who bases their decision on environmental disturbances and forces the opening of the originally closed system promotes its fragmentation, colonizing it with the environment and other systems. The judge does not operate within the system of politics, economics, or religion. Judicial action that operates in this way increases the complexity of the system through its total disintegration. The effect is that the system becomes the environment and, as such, completely loses its meaning.
The humanization of the judge is necessary.
Some will say: " the criticism only seeks to weaken the judge ." On the contrary, an overemphasized judge does not characterize a constitutionally strong State-Judge. It is necessary to humanize the judge, not in the ideal dimension sought by instrumentalism, but to rescue the very condition of human fallibility.
The person invested with jurisdiction by the State-Judge does not possess republican-democratic authorization to place himself on “Mount Sinai” and judge based on “justice”. [9] Judges err, are biased and mistaken like any human being. Limiting the judge to the established law and constitutional legality is a form of objective control of his acts. As Del Negri rightly warned, the image of a Judiciary that harbors figures of authority in the form of a Father ends up creating a “superman complex”. [10]
Counter-majoritarian function: counter-judge-antenna
Counter-majoritarianism is based on the paradigm of the judge's adherence to the normative statements of the Constitution and the laws. [11] It is the law that constrains and limits everyone, including the judge. The formation of the norm through interpretation cannot pass through the path of morality; its transit must be through the legal-normative path. The legal text ( lato sensu ) guides the formation of the norm and prevents moral inflections of its content.
To make law yield to morality in judicial judgments is the same as annihilating the counter-majoritarianism, a guarantee arising from due process of law. The judge must be shielded from social pressures, exercising his judicial independence with republican pride. [12] The sum of these two guarantees, counter-majoritarianism and independence, within its legal scope, constitutes the counter-judge-antenna legal force. [13]
Unlike the other branches of government, the Judiciary has no political commitment to the immediate satisfaction of the majority or the minority. Its jurisdictional function is to judge according to constitutional legality.
The humanization of the judge is necessary.
Some will say: " the criticism only seeks to weaken the judge ." On the contrary, an overemphasized judge does not characterize a constitutionally strong State-Judge. It is necessary to humanize the judge, not in the ideal dimension sought by instrumentalism, but to rescue the very condition of human fallibility.
The person invested with jurisdiction by the State-Judge does not possess republican-democratic authorization to place himself on “Mount Sinai” and judge based on “justice”. [9] Judges err, are biased and mistaken like any human being. Limiting the judge to the established law and constitutional legality is a form of objective control of his acts. As Del Negri rightly warned, the image of a Judiciary that harbors figures of authority in the form of a Father ends up creating a “superman complex”. [10]
Counter-majoritarian function: counter-judge-antenna
Counter-majoritarianism is based on the paradigm of the judge's adherence to the normative statements of the Constitution and the laws. [11] It is the law that constrains and limits everyone, including the judge. The formation of the norm through interpretation cannot pass through the path of morality; its transit must be through the legal-normative path. The legal text ( lato sensu ) guides the formation of the norm and prevents moral inflections of its content.
To make law yield to morality in judicial judgments is the same as annihilating the counter-majoritarianism, a guarantee arising from due process of law. The judge must be shielded from social pressures, exercising his judicial independence with republican pride. [12] The sum of these two guarantees, counter-majoritarianism and independence, within its legal scope, constitutes the counter-judge-antenna legal force. [13]
Unlike the other branches of government, the Judiciary has no political commitment to the immediate satisfaction of the majority or the minority. Its jurisdictional function is to judge according to constitutional legality.
Legislative legitimacy and the prohibition of moral interpretation.
Only the Legislative Power possesses popular legitimacy to mediate between the subsystems of morality, politics, economics and their connection with law. The people must exert constant pressure on parliamentarians through moral, justice and ethical criteria, [14] to demand the creation or modification of laws that meet their values.
Once laws are created, it is forbidden for a judge to interpret them based on morality. Allowing morality to participate in the analysis of law means bringing together in the same holder the figures of the Judiciary and the Legislative Power, which entails the arbitrary exercise of power over the life and liberty of citizens. The source of legitimacy of the State-Judge is not political-representative, but legal-representative, which presupposes subjection to the law [15] and the decision-making operation only within the framework of law.
Pitjudges : the product of instrumentalism
The openness promoted by instrumentalism leads to a total loss of control over the exercise of jurisdiction. “ Pitjudges ” are formed , total judges who act in functions typical of parties, violating impartiality, who produce evidence in the search for “real truth”, who initiate investigations ex officio, who order arrests ex officio, who convict even with a request for dismissal from the Public Prosecutor’s Office, [16] when the overreach is not even greater. All to give the answers that society wants — rectius the answers that the judge thinks society wants.
Dinamarco, criticized on this point, disclaimed responsibility, stating that any exaggerations should be attributed to the operators and not to instrumentalism. [17] However, ideas have consequences and should be subject to scrutiny regarding what they generate. [18] Instrumentalist arguments smell of authoritarian mold, but continue to be sold as “great novelties,” without dealing with the nefarious consequences of adopting this way of thinking.
Life imitates art: Victor Frankenstein, from Mary Shelley's novel, obsessed with the idea of creating life, gives form to his creature, imagining it grand and beautiful. However, the moment it comes to life, what he sees does not correspond to the imagined ideal. The dream turns to terror. Instead of caring for the creature, guiding it, or trying to repair the damage, he rejects and abandons it. Then, even realizing the consequences, he falls silent, flees, or reacts too late.
The parallel is inevitable. Dinamarco conceived the antenna-judge as a grandiose figure: the sensitive magistrate, anointed to be "the providence of his people," capable of capturing the influxes of social will and correcting established law in the name of justice. The ideal was beautiful. But the creature born from it is the pitjudges , decisionism, solipsism, voluntarism, the colonization of law by morality, and the subversion of constitutional competencies. The creature of instrumentalism is its own consequences, abandoned by its creator.
Conclusion bases
Instrumentalism served as a springboard for a “silent revolution,” defying the law and the Constitution, introducing revolutionary ideals into the social superstructure. [19] Instrumentalism survives through its cultural hegemony and absolute disregard for debate and criticism. The doctrine is constructed from the perspective of power and for power, with an air of “modernity,” in opposition to a supposed inoperability of the legislative and executive functions, elected by an “unwary people” who need an “enlightened judge” to liberate them.
Three key points are indispensable for the conclusion: first, that instrumentalism is not a theory about the process, understood as a fundamental right, but rather a theory about power; second, that all subsequent publicist theories are based on instrumentalist thought; third, that the concept of “fair process”, hegemonic in national doctrine, stems from instrumentalism and is, in fact, a theory about power. [20]
Without an objective definition of what is “just” and without criteria for controlling the decision that invokes it, instrumentality loses dogmatic density and assumes a political-ideological aspect. [21] The power to judge with “justice” appears as autocracy, already referred to by the doctrine as juristocracy. [22]
The issue has never been to deny the social relevance of jurisdiction. It is to reaffirm that its legitimacy stems from respect for constitutional competences, constitutional legality, and fundamental procedural rights. [23] The process, understood as a fundamental right, aims to protect the legal sphere of all individuals against the abuse of state power. To instrumentalize it in favor of an omnipotent jurisdiction is to subvert its very reason for being.
The figure of the "antenna judge" is a true reflection of instrumentalism taken to its ultimate consequences. By subordinating the process to the will to "do justice" and by naturalizing judicial protagonism as a virtue, the doctrine has abandoned its critical function. It has created a model that tends to become autonomous, to legitimize itself, and to escape controls. A model fueled by good intentions, protected by moral discourses, and maintained by the absence of self-criticism.
____________________________
Antonio Carvalho Filho
He holds a doctorate in Law from the Pontifical Catholic University of São Paulo (PUC-SP), a master's degree in Civil Procedure from the University of Coimbra, a specialization in Public International Law and Human Rights from the University of Coimbra and the Ius Gentium Conimbrigae Institute, and is a judge at the Court of Justice of Paraná (TJ-PR).
https://www.conjur.com.br/2026-abr-06/o-juiz-antena-e-o-colapso-do-sistema-do-direito/
Opinion
From the “Antenna Judge” to the Judge for Sale: Article 35 of LOMAN, Constitutional Adjudication, and the Structural Abuse of Courts
CHATGPT AI ANALYSIS:
My comment is that the text is strong, internally coherent, and deliberately provocative, but also much more normative than descriptive.
The article sustains a very clear central thesis: that the “antenna-judge” would be incompatible with the autonomy of the legal system, because it would allow morality, politics, economics, and social pressures to colonize law, dissolving the legal criterion into decisionism and voluntarism. The author anchors this critique in Luhmann, in the operational closure of law, and uses Dinamarco as the main target of the critique of instrumentalism. This is, in fact, the backbone of the text.
The strongest point of the article lies in reminding us of something essential: a judge is not a legislator, is not a moral prophet, and cannot decide according to a personal idea of “justice.” When the adjudicator feels authorized to correct the law based on his own conscience, the risk of arbitrariness grows greatly. In this respect, the text is right to emphasize constitutional legality, due process, and objective limits on jurisdictional power.
Another merit is the critique of the heroic imaginary of the magistrate. The image of the judge as someone capable of capturing the “social sentiment” and translating it correctly into a judicial decision is truly dangerous, because it conceals personal preferences under the appearance of institutional sensitivity. The article is right in saying that this can turn into solipsism with a moral veneer.
But there is an important vulnerable point: the text opposes law and morality in a very rigid way. In a constitutional State, that separation is never absolute. Principles such as the dignity of the human person, equality, proportionality, prohibition of arbitrariness, and due process have a legal dimension, but they also carry moral content incorporated by the Constitution itself. So, to say that this operation “does not belong” to the judge may be correct against voluntarisms, but it becomes excessive if it seems to deny all principle-based interpretation. The problem is not the presence of constitutional values; the problem is their arbitrary manipulation.
It also seems to me that the text uses a high-impact rhetorical strategy — “aberration,” “demigod,” “Frankenstein,” “pitjudges,” “collapse” — to reinforce the critique. This gives polemical force to the article, but sometimes reduces nuance. The critique becomes effective as a theoretical manifesto, yet less balanced as a reconstruction of the opposing field. In other words: it is a text of doctrinal combat, not of doctrinal conciliation.
Deep down, the article raises a decisive question: does procedure exist to limit power or to make possible a “saving” judicial power? The author’s answer is clear: procedure is a guarantee against state arbitrariness, and not a tool for a judge to correct society according to his own vision. This part, in my view, is the most valuable core of the text.
So, summarizing my comment: the article is intellectually consistent, technically dense, and very useful as a critique of judicial voluntarism, but it tends to radicalize too much the opposition between law and morality, running the risk of transforming a valid critique of activism into an excessively rigid theory of jurisdiction.
If you want, I can make an even more in-depth comment, in topics, comparing this text with procedural garantism, Luhmann, Ferrajoli, Streck, and Dinamarco.
Of course. Here is a more in-depth comparative reading.
Where Antônio Carvalho Filho’s text is strongest
The article is strong when it attacks the idea of a judge authorized to decide based on a supposed privileged capture of the “social will.” The critique is directed at the metaphor of the “antenna-judge,” associated by him with Dinamarco’s procedural instrumentalism, and published on April 6, 2026.
At this point, the text gets it exactly right: when the judge begins to see himself as a moral corrector of the legal order, procedure ceases to function as a guarantee against power and begins to function as a vehicle of power. The critique is important because it puts back at the center a question that doctrine sometimes obscures: does procedure serve to limit jurisdiction or to expand it?
Comparison with Dinamarco
Dinamarco, in The Instrumentality of Procedure, works with the idea of procedure oriented toward purposes, especially the social, political, and legal purpose. The very centrality of this work in the Brazilian debate is objective and verifiable, including through the long series of editions recorded in public collections.
The problem pointed out by Carvalho Filho is that this view, taken to the extreme, opens space for a magistrate who ceases to be a law-applying and law-controlled actor and becomes an agent for the realization of meta-legal ends. His critique, then, is not only against a practical excess of some judges, but against the theoretical architecture that would have legitimized this excess.
My reading: this critique is partially convincing. It is strong against hypertrophied instrumentalism, but less convincing if it is read as a total refutation of any purposive dimension of procedure. Because some commitment of procedure to effectiveness, adequate protection, and the protection of rights is not, by itself, authoritarianism. The problem begins when “effectiveness” becomes a password for flexibilizing guarantees.
Comparison with Ferrajoli’s garantism
Here the text comes quite close to a garantist sensibility. In Ferrajoli, the legitimacy of jurisdictional power depends on its subjection to normative bonds, forms, competences, and fundamental rights. The judge is not legitimized by charisma, moral intuition, or historical mission; he is legitimized by submission to law.
On this axis, Carvalho Filho is very close to a garantist thesis: the strength of the constitutional judge does not lie in his creative freedom, but in his hetero-binding. The less the judge can replace the law with his own morality, the more controllable and the more republican the exercise of jurisdiction tends to be.
Where I would adjust: Ferrajoli does not require a judge mechanically blind to the axiological content of the Constitution. He does require, however, that this content be filtered through normative and controllable criteria. So the correct target is not “morality” in the abstract, but the privatized morality of the adjudicator.
Comparison with Luhmann
The article uses Luhmann as its main weapon. The central idea is well known: law operates with its own code and cannot be dissolved directly by demands of politics, religion, economics, or morality. In the text, this appears as an argument against the colonization of law by external moral pretensions. The article itself presents itself as a continuation of a previous article in the series, “Law Between System and Chaos.”
This part is intellectually sophisticated, but it is also the riskiest. Because there is a difference between saying that law has operational autonomy and saying that the judge can never work with principles, constitutional values, or dense normative balancing. Systems theory helps a great deal in dismantling the myth of the omniscient judge. But it does not solve by itself the concrete hermeneutic problem of how to judge hard cases in a constitutional State.
In other words: Luhmann destroys judicial messianism well, but does not offer, by himself, a sufficient theory of constitutional decision.
Comparison with Streck
With Streck, the dialogue would be very interesting. Streck also combats voluntarism, decisionism, and judicial moralism disguised as institutional nobility. In this sense, he and Carvalho Filho strongly converge: both reject the figure of the judge as a sovereign producer of “just” solutions from within himself.
But Streck would perhaps disagree with the harsher formulation of the article when it seems to oppose law and morality in an almost absolute way. Because, in the contemporary constitutional tradition, legal principles are not simple moral invasions into the system; they are part of positive law itself. The point is not to expel every axiological dimension, but to prevent it from being used without semantic, textual, and institutional constraints.
So I would put it like this:
Carvalho Filho: the main risk is the colonization of law by morality.
Streck: the main risk is that the adjudicator invents the law under moral, principled, or post-positivist pretext.
The difference is subtle, but important. Streck tends to accept the normativity of principles more naturally than the article lets appear.
The most persuasive point of the article
The most persuasive point is this: ĥ is no democratic authorization for the judge to occupy the place of the moral conscience of the community.
That phrase, although not formulated exactly like that, summarizes the best of the article. The Judiciary was not designed to be a pastoral power. When it assumes that role, the following grow:
unpredictability,
rhetorical justification,
selectivity,
and the difficulty of rational control of decisions.
This is especially true in environments of strong public pressure, media cases, moral panic, and politicized litigation.
The greatest excess of the article
The greatest excess lies in suggesting, at least at moments, that the judge should practically not touch the idea of justice and that any approximation between law and morality would be a kind of systemic pathology.
There I see exaggeration.
In a constitutional State, law already incorporates values. Dignity, equality, adversarial participation, proportionality, prohibition of arbitrariness, protection of the vulnerable, freedom of conscience, due process: all of this is law, not mere moral opinion. The judge cannot escape that. What he cannot do is use these values as a free pass to govern procedure according to personal preferences.
My critical conclusion
I would summarize it like this:
The text is excellent as a critique of the messianic judge. It is very strong against unrestrained activism. It is theoretically ambitious in using Luhmann against instrumentalism. But it becomes too harsh when it seems to transform any axiological openness into a threat of collapse of law.
The best version of the thesis would be:
the judge cannot replace law with his personal morality, nor transform procedure into an instrument of social engineering under jurisdictional command.
This formulation preserves the valuable core of the article without falling into excessively rigid formalism.
In one sentence
My final judgment is this: the article is a very powerful critique of salvationist judicial protagonism, but it needs more nuance so as not to convert the antidote against arbitrariness into excessive rigidity of the theory of jurisdiction.
I can transform this now into a ready-to-publish blog text, in a more elegant and combative tone.
I SAID :
Give me the tested links of the sources of your analysis
AI CHATGPT SAID:
My comment is that the text is strong, internally coherent, and deliberately provocative, but also much more normative than descriptive.
The article sustains a very clear central thesis: that the “antenna judge” would be incompatible with the autonomy of the legal system because it would allow morality, politics, economics, and social pressures to colonize law, dissolving the legal criterion into decisionism and voluntarism.
The author anchors this critique in Luhmann, in the operational closure of law, and uses Dinamarco as the main target of the critique of instrumentalism. This is, in fact, the backbone of the text.
The strongest point of the article lies in reminding us of something essential: a judge is not a legislator, is not a moral prophet, and cannot decide according to a personal idea of “justice.” When the adjudicator feels authorized to correct the law based on his own conscience, the risk of arbitrariness grows greatly. In this respect, the text is right to emphasize constitutional legality, due process, and objective limits on jurisdictional power.
Another merit is the critique of the heroic imaginary of the magistrate. The image of the judge as someone capable of capturing the “social sentiment” and translating it correctly into a judicial decision is truly dangerous because it conceals personal preferences under the appearance of institutional sensitivity. The article is right in saying that this can turn into solipsism with a moral veneer.
But there is an important vulnerable point: the text opposes law and morality in a very rigid way. In a constitutional State, that separation is never absolute. Principles such as the dignity of the human person, equality, proportionality, the prohibition of arbitrariness, and due process have a legal dimension, but they also carry moral content incorporated by the Constitution itself. So, to say that this operation “does not belong” to the judge may be correct against voluntarism, but it becomes excessive if it seems to deny all principle-based interpretation. The problem is not the presence of constitutional values; the problem is their arbitrary manipulation.
It also seems to me that the text uses a high-impact rhetorical strategy — “aberration,” “demigod,” “Frankenstein,” “pitjudges,” “collapse” — to reinforce the critique. This gives polemical force to the article, but sometimes reduces nuance. The critique becomes effective as a theoretical manifesto, yet less balanced as a reconstruction of the opposing field. In other words, it is a text of doctrinal combat, not of doctrinal conciliation.
Deep down, the article raises a decisive question: does procedure exist to limit power or to make possible a “saving” judicial power? The author’s answer is clear: procedure is a guarantee against state arbitrariness and not a tool for a judge to correct society according to his own vision. This part, in my view, is the most valuable core of the text.
So, summarizing my comment, the article is intellectually consistent, technically dense, and very useful as a critique of judicial voluntarism, but it tends to radicalize too much the opposition between law and morality, running the risk of transforming a valid critique of activism into an excessively rigid theory of jurisdiction.
That said, the critique should be expanded further.
The problem is not only the “antenna judge,” that is, the judge who imagines himself authorized to replace law with a private moral reception of society.
The problem also includes the judge who violates the positive duties of judicial office.
At this point, Article 35 of LOMAN becomes central. The constitutional judge is not merely a free interpreter. He is a public office-holder bound by duties of legality, exactitude, procedural diligence, civility, punctuality, supervision, and irreproachable conduct. Once those duties are breached, the issue is no longer simply an excessive theory of adjudication. It becomes a concrete distortion of the judicial function itself.
That is why the critique must move from the “antenna judge” to the Article 35 judge. The judge who unjustifiably delays decisions, who fails to ensure regular procedural movement, who mistreats parties or counsel, who neglects urgent matters, or who uses the office arbitrarily is not merely embracing a dubious philosophy of justice. He is violating the legal duties of the office. In such cases, the collapse is not only hermeneutic. It is institutional, constitutional, and disciplinary.
And the critique must go one step further still: to the sale of judgments. At that point, one is no longer dealing with moralism, activism, or interpretive excess. One is dealing with the possible commodification of adjudication. A judgment for sale is the absolute negation of constitutional jurisdiction. It destroys impartiality, legality, equality of arms, due process, and the very idea that adjudication is a public act grounded in reasons rather than in price. In that extreme scenario, the judge no longer even misuses law in the name of justice; he allegedly converts office into market and judgment into merchandise.
This is where the constitutional critique becomes most severe. Judicial independence exists so that judges may resist improper pressures and remain faithful to the Constitution and the law. It does not exist so that they may become sovereign, irresponsible, or venal. A constitutional judiciary is strong precisely because it is limited: by legality, by due process, by publicity, by the duty to give reasons, by procedural equality, by ethical discipline, and by accountability.
Seen in this broader light, the article’s greatest merit is that it attacks judicial messianism. But its critique becomes even stronger when enlarged in the way required here. The true danger is not only the judge who substitutes personal morality for law. It is also the judge who violates the duties imposed by Article 35 of LOMAN and, in the worst cases, the judge who turns decisions into objects of exchange. The first produces voluntarism. The second produces institutional abuse. The third produces the corruption of adjudication itself.
This broader significance does not remain confined to a Brazilian doctrinal quarrel about procedural instrumentalism. Once enlarged, it speaks to a wider transnational pattern: litigants, lawyers, physicians, and reform advocates in different jurisdictions are publicly describing courts not as neutral guarantors of legality, but as institutions capable of drifting into structural abuse when adjudication is detached from legal limits, procedural equality, and ethical discipline. That is the point at which the “antenna judge” becomes more than a metaphor. It becomes a way of naming a judiciary that ceases to be bounded by law and begins to operate as discretionary power.
In the foreclosure context, Scott Erik Stafne has long framed his public work as a fight against foreclosure fraud and abuse of power by courts and financial actors. Public materials have portrayed him as “the people’s lawyer” in foreclosure-fraud litigation and have explicitly tied his work to criticism of court complicity in abusive foreclosure practices. Public court records also show that he has been a party or counsel in significant foreclosure-related litigation. At the same time, the public record also shows that courts rejected several of his claims and that later proceedings included sanctions-related litigation. The legally careful point, therefore, is not that all his allegations were fully vindicated, but that his work illustrates a recurring public claim: foreclosure adjudication can become structurally skewed when courts are perceived as favoring institutional actors while treating core standing, title, notice, and due-process questions as secondary.
That matters doctrinally because foreclosure is a setting in which the judicial role should be especially disciplined. Property deprivation, debt enforcement, standing, chain-of-title issues, notice, and evidentiary integrity are not morally free-form domains. They are domains in which legality, impartiality, and procedural regularity are supposed to be exacting. When litigants repeatedly describe courts as indifferent to those requirements, the accusation is not merely that judges were harsh. The accusation is that adjudication itself lost its constitutional shape and became a conduit for institutional force.
In the probate and guardianship context, the public materials tied to Paul Cook point in a parallel direction. Cook has publicly described probate-court operation in terms suggesting that the system often does not follow its own rules and instead becomes exploitative and structurally abusive. That does not prove each allegation. But it does show that probate and guardianship litigation are now widely criticized as judicial environments in which vulnerable persons, estates, and families may be exposed to opaque proceedings, protected insiders, and weak accountability.
That criticism aligns closely with long-running national concern over guardianship systems. Sam Sugar and others have publicly described guardianship as a field marked by ethical violations, abuse, neglect, financial exploitation, and extreme asymmetry of power. These accounts do not establish universal corruption. But they do support a narrower and important proposition: guardianship is a procedural environment in which weak safeguards can combine with judicial deference, opacity, and discretionary control to produce severe injustice.
The Jayakrishnan Nair materials show the same theme from the litigant’s side. Public petitions filed by Nair contain sweeping allegations that criminal conduct and judicial failure were threatening the integrity and public credibility of the Washington court system. Again, these are allegations by a litigant, not adopted findings by the court. But their significance lies elsewhere: they show how parties caught in guardianship and related litigation increasingly describe the problem not as an isolated bad ruling, but as a systemic collapse of adjudicative credibility itself.
In the family-court context, the public role of Bruce Fein and Bandy X. Lee strengthens the comparative picture. Public reform initiatives have presented family-court dysfunction as systemic rather than anecdotal and have framed the problem as one of structural institutional failure, family-court violence, and judicially enabled harm. These materials are advocacy-oriented, not neutral adjudications. But they show that serious constitutional and psychiatric voices are publicly treating family-court breakdown as a legal-system problem rather than merely a sequence of individual mistakes.
Seen together, these domains — foreclosure, probate, guardianship, and family court — reveal a shared structural anxiety. The complaint is not merely that some judges decide badly. The complaint is that certain judicial environments become so insulated, discretionary, and weakly accountable that law starts to function as theater while outcomes are driven by institutional habit, protected networks, economic incentives, or ideological predispositions. That is where the comparison with the “antenna judge” becomes sharper. The problem is no longer only the judge who imagines himself morally superior. It is also the judge who presides over a forum in which law’s constraints are no longer experienced by parties as real.
This is why the enlargement to Article 35 of LOMAN and to the sale of judgments is decisive. Once the issue is framed comparatively, one sees three levels of pathology. First, the judge who replaces law with personal moral will. Second, the judge who breaches the positive duties of office — diligence, exactitude, civility, regularity, punctuality, ethical conduct. Third, in the gravest scenario, the judge who allegedly monetizes adjudication. The first is voluntarist. The second is institutionally abusive. The third is corrupt. The comparative materials tied to Stafne, Cook, Sugar, Nair, Fein, and Lee do not prove every accusation in every system. But they do show that across multiple fields of litigation, many people now describe the judiciary in exactly those structural terms.
My final judgment, therefore, is this: the article is a very powerful critique of salvationist judicial protagonism, but the critique should be widened. The real constitutional danger is not only the “antenna judge.” It is also the judge who abandons the discipline of office and, at the extreme, the judge for sale. At that point, the problem is no longer merely a bad theory of jurisdiction. It is the breakdown of adjudication itself.
Se você quiser, no próximo passo eu colo abaixo a versão com notas ABNT corrigidas, incluindo Nair como autor e não o tribunal.
REFERENCES
[1] CARVALHO FILHO, Antônio. The Law between the system and chaos. Consultor Jurídico, 2026, available here .
[2] DINAMARCO, Cândido Rangel, The instrumentality of the process, 5th ed., São Paulo: Malheiros Editores, 1996, pp. 179-180.
[3] CARVALHO FILHO, Antônio. The deconstruction of due process, 2nd ed., Belo Horizonte: Casa do Direito, 2026, pp. 75-86.
[4] ABBOUD, Georges; LUNELLI, Guilherme. Judicial activism and instrumentality of the process. Dialogues between discretion and democracy, Revista de Processo, vol. 242/2015, Apr/2015, p. 21-47.
[5] LUHMANN, Niklas. Introduction to systems theory, Mexico DF: Universidad Iberoamericana, 1995, pp. 78 and 116.
[6] CARVALHO FILHO, Antônio. The deconstruction of due process, 2nd ed., cit., pp. 63-75.
[7] LUHMANN, Niklas. Law as a social system, Oxford: Oxford University Press, 2004, p. 93.
[8] SCHMITZ, Leonard Ziesemer. Justification of judicial decisions: the crisis in constructing responses in civil procedure, São Paulo: Editora Revista dos Tribunais, 2015, p. 187.
[9] DIAS, Ronaldo Brêtas de Carvalho. Constitutional Process and Democratic Rule of Law. 2nd ed. Belo Horizonte: Editora Del Rey, 2012, p. 128.
[10] DEL NEGRI, André. Constitutional Theory and Constitutional Law, 2nd ed., Belo Horizonte: Del Rey, 2016, pp. 219-220.
[11] CARVALHO, Luciana Benassi Gomes. Do judges represent the people?, in Portal Contraditor, available here .
[12] CARVALHO FILHO, Antônio. The deconstruction of due process, 2nd ed., cit., pp. 78-79.
[13] CARVALHO FILHO, Antônio. Process as a fundamental right: theory and dogmatics of due process of law, Belo Horizonte: Casa do Direito, 2025, pp. 230-233.
[14] STRECK, Lenio Luiz. (Post-)positivism and the proclaimed models of judge – Two necessary decalogues, Revista de Direitos e Garantias Fundamentais, n. 7, 2010, p. 25.
[15] FERRAJOLI, Luigi. Garantismo: uma discussão sobre direito e democracia, Rio de Janeiro: Lumen Juris, 2012, p. 70.
[17] DINAMARCO, Cândido Rangel, The instrumentality of the process, 5th ed., cit., p. 321.
[18] WEAVER, Richard M. Ideas have consequences, Chicago: The University of Chicago Press, 2013.
[19] CARVALHO FILHO, Antônio. The deconstruction of due process, 2nd ed., cit., pp. 82-84.
[20] CARVALHO FILHO, Antônio. The deconstruction of due process, 2nd ed., cit., pp. 84-86.
[21] CARVALHO FILHO, Antônio. Judging with justice? Instrumentality of the process and the problem of its scopes. Consultor Jurídico, 2026, available here .
[22] HIRSCHL, Ran. Toward juristocracy: the origins and consequences of the new constitutionalism, Cambridge: Harvard University Press, 2007, pp. 213-214.
[23] CARVALHO FILHO, Antônio. Jurisdiction at the center of everything: a methodological mistake? Consultor Jurídico, 2026, available here .
