State liability for unconstitutional legislative and judicial acts

Abstract

This article examines the possibility of holding the State civilly liable for damages arising from unconstitutional legislative and judicial acts. Drawing on the normative centrality of the Constitution in contemporary democracies, the author proposes a constitutionalized understanding of civil liability, whereby fundamental rights and constitutional principles act as structuring criteria. The research adopts a hypothetical-deductive method, based on literature review and analysis of national legislation and jurisprudence, while also engaging with comparative legal experiences. It is argued that mere unconstitutionality is not sufficient to trigger the duty to compensate; instead, a careful assessment of the parameters legitimizing State liability is required. The article concludes that such liability is not only compatible with the Brazilian constitutional order, but indeed a requirement of it.