Pre-Enforceability Exception and Human Dignity

The pre-enforceability exception is the result of doctrinal and jurisprudential construction as a form of defense for the defendant and has been used very frequently. Despite the absence of legal regulation, with no provision in the code of civil procedure or other specific legislation, this institution is justified and materialized in the Brazilian legal system. To explain this phenomenon, we must look to its roots in the Enlightenment philosophical movement, a historical period that provided opportunities for the codification of law and the emergence of the method of subsuming facts to norms. Judges were then only authorized to judge in the manner provided for by law. However, the codified system, hermetic and closed in on itself, began to show clear signs of distancing itself from the realities and complex legal relationships that have formed today, proving powerless to settle disputes and undergoing a paradigmatic deconstruction at the end of the 20th century. This work highlights the exception of pre-enforceability as an instrument at the service of the constitutional principle of Human Dignity.