The phenomenon of mutation in the Brazilian constitutional process: Origins and limits

Abstract

The purpose of this paper is to deeply examine the phenomenon of constitutional mutation within the Brazilian legal context, using the Ship of Theseus Paradox to illustrate dilemmas about identity and change in Constitutional Law. The article explores the reception and application of the concept in Brazilian doctrine and jurisprudence, highlighting the influence of German studies and the perspectives of national jurists on the limits and implications of constitutional mutations. Through a critical analysis, it discusses both the acceptance and criticisms of the phenomenon, pointing out the risks of decisionism and the usurpation of legislative functions by the judiciary. Using a case study on Reclamação n. 4.335, the text reveals how the STF decisions have applied the theory of constitutional mutation in practice, showing the tension between the need to adapt the Constitution in the face of new social realities and the maintenance of its integrity and identity. The article concludes by emphasizing the need for a balance between the adaptation of constitutional norms and the preservation of the fundamental principles that support the Democratic Rule of Law.