O direito líquido e certo no mandado de segurança

Abstract

The Injunction is a mechanism available to all persons under the jurisdiction of the courts of law for the protection of their rights against wrongs perpetrated by the Administration or by those acting on its behalf. As an expeditious procedural path ensured by the Federal Constitution to curb illegitimate acts of the State, it is a highly relevant instrument in the Rule of Law, considered by scholars as a Brazilian innovation inspired by a foreign legal system. It has been in place as a constitutional provision since 1934, with exception of the Political Chart of 1937, though this has not prevented injunction from being adopted thanks to the infra-constitutional nature of this provision. Since its creation, a legal requirement that must be satisfied for the applicability of a writ of mandamus is the presence of a “clear and indisputable right”, subsequently changed to “clear and certain right”, the construction of which - albeit essential for the choice of that injunctive relief - has been a matter of debate since its inception. Contemporarily, there is a consensus among scholars over the vagueness of the term “clear and certain right”, and the analysis of this aspect is the subjectmatter of this monograph