Disputing the Application of Laws: The Constitutionality of the Brazilian Statute Against Domestic Violence in the Courts (original) (raw)
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Forham Law Review, 2009
The goal of this essay is to reflect on how the application of statutes by courts can influence the juridification of social demands, as evidenced in the African-Brazilian movement. To achieve this, first, this essay analyzes how the African-Brazilian movement approached its fight for racial equality. We show how, traditionally, the African-Brazilian movement has chosen the enactment of specific criminal statutes as the main legal strategy in its movement against racial discrimination, and how it has judged the effectiveness of this legislation in terms of the number of convictions made: a low conviction rate has been interpreted as a sign of the courts’ lack of sensitivity concerning racial issues. Secondly, we contrast the evaluation made by the social movement with data collected from rulings made by the São Paulo Court of Appeals (the Tribunal de Justiça do Estado de São Paulo, or TJSP). Such data allows us to prove that a lack of condemnations does not mean that the law is ineffective or that judges are not sensitive to racial issues. The low number of convictions for racism can be understood better in terms of incongruent regulations rather than biased judges. Furthermore, the lack of convictions does not necessarily mean that there are no court rulings against racist behavior. Our research has shown that, on the contrary, most of the cases brought before the TJSP have prompted judges to stress that racial discrimination is illegal and should be taken to trial. Therefore, Part III questions the inability of the African-Brazilian movement to perceive how statutes are applied by the judiciary. We argue that this inability is the result of a legalist vision of the application of norms that does not allow social agents to thematize the moment of sentencing. As a result, these social agents have failed to develop specific strategies to present to the judiciary, which is regarded as being an activist judiciary. The inability to discuss and develop a clear strategy to deal with this problem has led the African-Brazilian movement to fight for new statutes, which has in some cases served to perpetuate a situation characterized by the low number of convictions. We conclude by discussing the results of our research regarding the importance to democracy of the dispute involved in the interpretation of norms and, therefore, the importance of lawyers in a democracy. We will show that a legalist position that defends the elimination of the indeterminacy of legal norms can produce authoritarian practices, which, in seeking to eliminate the dispute over the meaning of norms, favor the creation of a single point of view about the meaning of laws.
How can oppressive structures be undermined in the pursuit of gender equality? Facing and combating violence against women is essential to reduce this inequality. This article explores the need for the judicialization of violence against women and gender inequality and the importance of the constitution of this process as a political arena in Latin America, especially in Brazil. In an unequal world, the juridical field, like many others, is characterized by complex social relations, and is therefore itself an object of dispute in the quest for greater freedom and autonomy for women. This article explores judicialization as one of the paths taken by Brazilian feminist movements as a way to combat violence against women. Feminism—both as a theory and as a political movement— is known to be manifold and heterogeneous. The judicialization of rights is one of many paths adopted in the bid to build a less unequal society. It is also important to note that the law has been used as an instrument of emancipation for various socially disadvantaged groups; it is not an exclusively feminist approach. This article analyzes the potentialities and limitations of judicialization as an instrument to combat gender-based inequality in Brazil.
Law and Society in Brazil at the Crossroads: A Review
Annual Review of Law and Social Science, 2014
This article presents a general overview of Brazilian sociolegal studies. After presenting a short historical narrative of the field in Brazil, we argue that the early years of intense teaching of legal sociology had a politically committed approach, which gave rise to growing criticism of Brazilian legal scholarship that in turn affected the self-image of law professors. Different theoretical strands appeared in the years that followed, and some specific fields of research gained importance, particularly those concerning a sociology of the legal profession, the administration of courts, and law schools. However, we contend that as time went by, many sociolegal scholars began to neglect the critical approach to law, and today most of them fail to confront critical aspects of the gap between law on the books and law in action, especially when that gap affects lower classes or stigmatized populations.
Atâtôt – Revista Interdisciplinar de Direitos Humanos da UEG , 2020
This paper is the result of more than a hundred hours of digital research and field research on transitional justice in the city of Recife. It was taken as a starting point UN Security Council Resolution S/2004/616 on the rule of law and transitional justice in post-conflict societies and the international doctrinal construction on transitional justice from the International Center for Justice of Transition (ICTJ). According to these standings, how does this phenomenon (of transitional justice) become concrete and accessible in Recife city? Experiences made, documented and made available through the internet, in addition to the experiences scattered in various places of the city were used to anwer the question. Then, ten categories of experiences were identified: 1. places of/to memory; 2. Collective groups actions about memory, truth and justice; 3. books; 4. documentaries and reports; 5. audios; 6. feature films and theater plays; 7. internet channels; 8. special projects; 9. justice (national and international jurisdiction); and 10. institutional changes. From the material collected, it is possible to understand that: a. there is a specific action by civil society; b. there is an individual repair mechanism; c. there is diffuse symbolic reparation; d. there is a new truth conception; e. some places of memory remain as non-memory; f. the judicialization of criminal facts against humanity remains hampered in national jurisdiction; g. there were no measures about profound institutional changes in the Brazilian State. Sumário Este artigo é resultado de mais de cem horas de pesquisa digital e pesquisa de campo sobre justiça transicional na cidade do Recife. Foi tomada como ponto de partida a Resolução do Conselho de Segurança S/2004/616 sobre o Estado de direito e justiça de transição nas sociedades pós-conflito e a construção doutrinária internacional sobre a justiça transicional Internacional do Centro para a Justiça de Transição (ICTJ). Em vista desse paradigma, como esse fenômeno (da justiça transicional) se torna concreto e acessível na cidade do Recife? Experiências feitas, documentadas e disponibilizadas pela internet, além das experiências dispersas em vários locais da cidade, foram utilizadas para responder à pergunta. Em seguida, foram identificadas dez categorias de experiências: 1. lugares de/para a memória; 2. Ação de grupos coletivos sobre memória, verdade e justiça; 3. livros; 4. documentários e reportagens; 5. áudios; 6. filmes de longa metragem e peças teatrais; 7. canais digitais; 8. projetos especiais; 9. justiça (jurisdição nacional e internacional); e 10. mudanças institucionais. A partir do material coletado, é possível entender que: a. existe uma ação específica da sociedade civil; b. existe um mecanismo de reparo individual; c. há reparação simbólica difusa; d. existe uma construção da verdade; e. alguns lugares de memória permanecem como não-memória; f. a judicialização de fatos contra a humanidade continua prejudicada na jurisdição nacional; g. Não houve medidas sobre as profundas mudanças institucionais no Estado brasileiro.
Social Rights and the (Lack of) Control of Power: The Brazilian Casea
International journal of forensic sciences, 2021
One of the good indicators of social control of power is the way in which contemporary societies deal with transitional justice. The most academic approaches to transitional justice, especially in Brazil, usually does not observe the role played by The Supreme Court in particular, and the judiciary in general. This paper seeks to make a relatively different approach. We observe the regulatory frameworks of the Brazilian authoritarian periods, such as the preamble of the 1937 Brazilian Constitution and the preamble of the Institutional Act n. 1/64, looking at them as they were like the Comic Code Authority, in a comparative approach, and observing, also in a comparative way, the Supreme Court as representative of a kind of "Ring of Gyges", the mythical famous magical artifact mentioned by Plato in his Republic, in order to allow the "invisibility" of supposed heroes at authoritarian regimes, in a struggle that sought to identify "good guys" and "bad guys", or the "good" versus "evil" in a context in which normative transitional disputes resemble reports of different narratives, and within which the version matters more than the responsibility for the violation of rights and the human dignity. This paper uses the essay style, through bibliographic review as a method to talk about the theme described in this abstract.
Verfassung in Recht und Übersee, 2011
A. Initial considerations-the problem of comparative studies By way of introduction, we need to point out that any approach to this subject would be reductionist because of the complexity of the issue of politicization of Justice or the legalization of politics (the economy and the institutional agenda) in other countries and especially in Brazil. It would be reductionist to approach the issue by way of a dialogue between advocates of judicial activism and those "supporters" of the concept of selfrestraint-minimalists. This is because both conceptions, both of which are extreme views, can lead to a gullibility in the virtues of the decisor solipsistic (Judiciary), in the first case, or reduce the role of the procedural and judicial spheres in pursuit of fundamental rights not offered to citizens in the second case. It would also be a limited approach if we treated the controversy from the perspective of the so called Public Interest Litigation, as has been done in numerous countries following the 1976 work of Professor Abram Chayes, Harvard Law School, which referred to the practice of lawyers in the United States seeking to precipitate social change through the bringing of claims involving the restructuring of key institutions of government, including public schools, mental hospitals, clinics and prisons, affecting thousands of people.
Brazilian Legal Culture: From the Tradition of Exception to the Promise of Emancipation
[This is just a preview of the paper. The full paper is avaiable at: http://link.springer.com/article/10.1007%2Fs11196-015-9449-2\] This article investigates the existence of an original Brazilian legal culture. It parts from a critical examination of the key moments in the history of Brazil through the accounts of its most important scholars, such as Caio Prado Junior, Darcy Ribeiro, Sergio Buarque de Holanda, Wilson Martins, Oliveira Viana, Roberto Damatta, Jose Murilo de Carvalho, among others. It identifies in the Brazilian legal culture something one might call tradition of exception, which can be found in many of its most prominent aspects, such as the persistent denial of any general or abstract regulatory standards, the uncritical introduction of foreign doctrines and legal patterns, the maintenance of aristocratic traditions in social life and the historical disregard of the Brazilian people as political subject. The article also offers a reflection on the problems and potentials of the current historic moment, in which for the first time Brazilians face the possibility of a genuine cultural emancipation.
Law and society in Brazil: the prevailing perceptions of law in Brazilian society
International Journal of Private Law, 2009
Due to the chasm in Brazil that exists between law on paper and 'law' in practice, anyone wishing to understand how the country works in reality will also need to consider the ways in which people are able to excuse themselves from submission to positive law. An observation of Brazil's reality reveals a society that is deeply regulated by contra-legem (anti-legal) rules. These are not the rules that are taught in law schools, but rather are socially defined rules that vary remarkably from the state codes, statutes and the rulings of the courts. This article provides an analysis of Brazil's legal culture. 'Legal culture' means the prevailing perceptions about law in society and the general attitudes towards the formal legal system. Thus, this article explains the manner in which Brazilian law operates in practice as opposed to theory.
The Brazilian constitution contemplates a large spectrum of socioeconomic rights such as health, education, work, social security, special protection for the vulnerable, etc. Those rights are expressly recognized as justiciable, due to another constitutional clause – article 5º, § 1º – which states that norms defining fundamental rights are of immediate application. Judicialization of socioeconomic rights is, therefore, a clear possibility in the Brazilian system; resulting from the constitutional commitment with human dignity, set as a fundamental objective of the Republic (article 1º, III of the Brazilian constitution). In a comparative perspective, the Brazilian provision is align with the tendency in constitutional design present since the late 90’s, of formally recognizing socioeconomic rights. The analytic structure adopted by the Brazilian Constitution – there are 78 individual fundamental rights listed in article 5; and 34 in article 6, which contemplates socioeconomic rights – is a testimony of the belief that social transformation may be achieved through constitutional commitments. A distinct feature in the Brazilian constitutional frame of socioeconomic rights is the aforementioned immediate application clause. Other international experiences went with the gradual implementation formula (South Africa), or even extract a certain degree of efficacy to fundamental rights in an amplified interpretation of general constitutional clauses as the right to life itself (India) or the right of the most vulnerable to special protection (Colombia). Such interpretative effort is not required in Brazil – but outlining the content of socioeconomic rights is still a challenge. The difficulty in defining the real content of socioeconomic rights is strengthen by two distinct factors: 1) institutional design, and 2) judicial competencies. In the institutional design perspective, the Brazilian constitution sometimes draws applicable principles and administrative structures that should construct such content in a dialogical basis – that’s what happened with the right to health. In other cases the constitution simply mentions a fundamental right, and silences about its implementation. Housing rights is an example of the former solution; the constitution mentions them in article 6, and does not clarify who is responsible in the Brazilian federation for its provision. The constitution also don’t indicate a procedure, principle guidance or any other indication of how the content of such a right could be defined by any of the power holders that may be called to grant it. Judicial competencies present itself as an issue because scrutinizing socioeconomic rights is not in the exclusive domain of the Constitutional Court. Furthermore, the Constitutional Court does not usually examine the realization of such rights – the Brazilian judicial system prevents the examination by the Constitutional Court of any juridical question that involves the evaluation of facts, and fact examining is usually mandatory in socioeconomic rights litigation. This is a significant differentiation in the Brazilian experience: socioeconomic rights will not be frame, most of the time, by the Constitutional Court, but by over 15.000 judges throughout country. The vagueness of the constitutional provisions in socioeconomic rights; the institutional difficulty and the wide spectrum of possibilities in judicializing such rights are causing serious distortions to the original constitutional transformation project – and mapping those distortions is the main goal of the research presented in this article. The international literature has already pointed possible deviances in such a judicial strategy: 1) the regressive potential of judicial review; 2) significant disarray in public policies; 3) alienation from the real addressees of the constitutional guarantee, etc. The Brazilian experience indicates another possible negative effect of granting socioeconomic rights without a normative and procedural adequate frame. The vagueness of the rights content and the pressure of the constitutional command that grants immediate efficacy is leading to a generalized “solution” built by Judiciary applied to cases in which the real delivery of goods and services presents itself as a difficult task: substituting the real right for financial aid or compensation. This is happening especially in housing rights, where the material difficulty in building houses is leading to financial aid as a supposed solution to the homeless. That path, when chosen as a temporary one, drains the Public Administration effort in providing a consistent and broad public policy in the right in scrutiny. On the other hand, financial condemnations as a reparative provision promotes a mercantilization in socioeconomic rights, and deviates public funding from the ultimate goal – the real provision of goods or services associated with the fulfillment of socioeconomic rights. The Brazilian solution, even though well meant, results in a violation of the republican principle, through a patrimonial vision of rights protection that reinforces inequality, denying the true values that found fundamental rights theory.