History of Constitutional Review in Brazil (From Foundation to Nowadays) (original) (raw)
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Resumo O fenômeno da judicialização da política tem sido objeto de intenso debate na academia nos últimos vinte anos, envolvendo diferentes abordagens que divergem quanto à existência do fenômeno, suas razões e a extensão de seus efeitos. A literatura jurídica sobre o tema discorre sobre suas origens sociológicas (como o desencanto da democracia), políticas (como o enfraquecimento do legislativo) e jurídicas (como o aumento do acesso à justiça e a justiciabilidade dos direitos sociais), enquanto estudos na ciência política dão ênfase em aspectos institucionais, descrevendo a judicialização como resultado das opções estratégicas dos atores envolvidos diante das contingências institucionais existentes. Este artigo se situa na última corrente, tendo como objetivo descrever a construção da variável institucional, isto é, da estrutura político-normativa que dá subsídio ao comportamento dos diversos atores envolvidos. Assim, propõe-se uma revisão da literatura sobre as origens da judicialização da política no Brasil que explicitam o contexto do surgimento do controle de constitucionalidade no modelo institucional norte-americano e sua posterior recepção no desenho constitucional brasileiro. Concluímos que as sucessivas modificações constitucionais levaram ao funcionamento, no Brasil, de um controle de constitucionalidade com tendências centralizadoras (âmbito federativo), com um súbito alargamento no número de legitimados na Constituição de 1988, variável institucional que poderia explicar o incremento no volume e na extensão do controle de constitucionalidade abstrato exercido pelo STF. Palavras-chave: Controle de Constitucionalidade. Supremo Tribunal Federal. Suprema Corte norte-americana. Judicialização da Política. Origens. Abstract The judicialization of politics has been subject of intense academic debate in the last two decades. There are different approaches diverging about its extent, reasons and even about its own existence as phenomenon. Mainstream legal literature describe judicialization as outcome for sociological (e.g. delusion with
Judicial Review in Brazil: Developments Under the 1988 Constitution
2000
I. INTRODUCTION Brazil has an extensive and complicated system of judicial review. Brazil also has an enormous Constitution laden with specific individual rights and far reaching social and economic goals. Committing rights and goals to writing, however, even in a national constitution, does not ensure their respect by those administering government's daily operations. Because Brazil has an accessible judicial system, many of these constitutional violations are on the courts' dockets for judicial resolution. Since Brazil has only a minimal system of binding legal precedent, the courts decide the same constitutional issues many times over. In addition to consuming valuable judicial resources, this leads to conflicting interpretations of constitutional provisions. This article explains the intricate Brazilian system of judicial review and the changes wrought by the adoption of the 1988 Constitution and its numerous amendments. It also explores the serious problems that these constitutional changes have created for the judicial system and assesses the desirability of certain judicial reforms. 1I. CONTOURS OF THE CURRENT CONSTITUTION Brazil's present Constitution, adopted in 1988, was originally a complex, convoluted and detailed document, with 245 articles and 70 transitory provisions.' Today it is even more so, with 250 articles, 83
Judicial Review in Brazil: Developments under the 1998 Constitution
Sw. JL & Trade Am., 2000
I. INTRODUCTION Brazil has an extensive and complicated system of judicial review. Brazil also has an enormous Constitution laden with specific individual rights and far reaching social and economic goals. Committing rights and goals to writing, however, even in a national constitution, does not ensure their respect by those administering government's daily operations. Because Brazil has an accessible judicial system, many of these constitutional violations are on the courts' dockets for judicial resolution. Since Brazil has only a minimal system of binding legal precedent, the courts decide the same constitutional issues many times over. In addition to consuming valuable judicial resources, this leads to conflicting interpretations of constitutional provisions. This article explains the intricate Brazilian system of judicial review and the changes wrought by the adoption of the 1988 Constitution and its numerous amendments. It also explores the serious problems that these constitutional changes have created for the judicial system and assesses the desirability of certain judicial reforms. 1I. CONTOURS OF THE CURRENT CONSTITUTION Brazil's present Constitution, adopted in 1988, was originally a complex, convoluted and detailed document, with 245 articles and 70 transitory provisions.' Today it is even more so, with 250 articles, 83
Journal of Constitucional History, 2020
This article formulates an intellectual history of the 1988 Brazilian Constitution on the occasion of its 30th anniversary, describing the cleavages that accompanied its birth and the political and ideological disputes that marked its existence. The text describes three moments of the political constitutional imaginary. The first concerns the issue of the nature and boundaries of constituent power and, consequently, of the Constituent Assembly model that would be in charge of bringing the authoritarian cycle (1977-1994) to an end. The second refers to the legal and politological debates that took place after the political regime found its routine, which concerned its governance model, i.e. how the political powers – Executive, Legislative, and Judiciary – should relate to each other (1994-2013). Finally, this study dares to provide an explanation for the current constitutional crisis (2013-2018), starting from the clashing thesis of the two models through which the Constitution had been interpreted: that of coalition presidentialism and the judicialization of politics.
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This paper aims at analyzing the so-called judicialization of politics, showing that it is not just a Brazilian experience, but a common one in several western countries. This movement has been very criticized on the grounds of its political legitimacy and of the exhaustion of the political sphere. On the other hand, the article analyzes the theory of judicial restraint, which defends that political matters should be decided by elected branches. Finally, it demonstrates through the analysis of the Brazilian Supreme Court (STF) and other courts' decisions, such as STJ, how the Brazilian Judicial Branch has faced issues of public policies in order to enforce the basic rights contemplated by the Brazilian Constitution of 1988.
ABSTRACTIVIZATION OF THE DIFFUSE CONTROL OF CONSTITUTIONALITY AND THE RELATIVIZATION OF THE TYPICAL FUNCTION OF THE BRAZILIAN LEGISLATIVE POWER, 2024
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Brazil’s Judiciary reform: mobilizing Judiciary members and re-stating the state country’s power
This work is the result of a research in process which aims at remaking the conceptions of the Judiciary power which join in the debate around its "Reform", along the nineties and part of the year 2000. One focuses two great dimensions of analisys. 1. The conceptions of the Judiciary power and its legitimacy within the space of power. The social professional and intelectual powers and the political corporate ties which stand for the positions in competion within the debate's scope. 2. The social professional and intelectual courses and the political and corporate ties of the main leaderships which stand for the positions in competions within the debate. In the two dimensions are considered the relationships of the "Reform's" national debates with the international movements of institutions reforms aiming at comparison with other latin América countries. The making of the research material occurs mainly through the qualitative methods specially the checking of statements, bibliographical production and holding interviews with the judges and political leaderships who stood out in the instances that defined the "Judiciary Reform's" propositions.
Constituent power and constitution-making process in Brazil: concepts, themes, problems
Journal of Constitutional History, 2020
This is a paper with Massimo Meccarelli about constituent power and constitution-making process in Brazilian history. Published in the Journal of Constitutional History, in a special issue on Brazilian constitutional history. In a phase such as the present one, which is marked by the crisis of the expansive trajectory of the constitutional state, is it possible to carry out a constitutional history without assuming a retrospective point of view? The paper takes this question as its starting point in order to identify an innovative potential for research in this field. An attempt to articulate the historical phenomenology of constituent processes will lead to distinguishing, in them, constituent and constituent dynamics. Upon this background, we will explore some interpretative itineraries in Brazilian constitutional history; the focus will be on the ascribed times of transition, exception, and insurgence. In conclusion, we will look into constitutional issues in present days, highlighting the Brazilian case as a privileged ground for research, so that we may understand in depth the meaning of constituent processes in constitutional history