Presumption of innocence in an orphan society

a mausian theoretical case study

Abstract

This work investigates whether the Federal Supreme Court (STF) used reasoning that Ingeborg Maus's work would classify as a "social superego" in the precedent regarding the presumption of innocence, established in the 2016 judgment of Habeas Corpus No. 126.292/SP. The central research question is: in its ruling on imprisonment after a second-instance conviction, did the STF act as a Brazilian social superego? The hypothesis is that the Court adopted a leading stance that reshaped the presumption of innocence, assuming the role of a higher authority in defining the scope of this fundamental right. To test this hypothesis, a qualitative methodological approach was used, incorporating bibliographical and jurisprudential research. The hypothesis was confirmed, as the STF acted not merely as a guardian of the Constitution but as an editor of the fundamental right itself, as outlined in the 1988 Constitutional Charter. By limiting a principle that should be amended by the legislature—the branch representing popular sovereignty—the judiciary acted as Ingeborg Maus predicted, transitioning from a constituted power to a constituent one.