Law and society in Brazil: the prevailing perceptions of law in Brazilian society (original) (raw)
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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.
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.
The development of the Sociology of Law in Brazil
Sortuz, 2021
The structuring of the sociology of Law as an autonomous discipline is a recent phenomenon both in world terms and in Brazil. To understand how the sociology of law was able to differentiate itself, in particular, from philosophy and theory of law, through its object and specific interests, is necessary to answer the central question of the paper: is it still necessary, in Brazil, the study of the sociology of law? The question was answered based on the assumption that (a) law is a social phenomenon, to (b) delimit the object of sociology of law, and therefore (c) to approach the past and the present of the discipline in Brazil, reaching the conclusion that (d) the current Brazilian moment demands even more the study of the external perspective of Law (sociology). Keywords: Sociology of Law, Brazil, Need. Resumen: La estructuración de la sociología jurídica como disciplina autónoma es un fenómeno reciente, tanto en el mundo como en Brasil. Para entender cómo la sociología jurídica logró diferenciarse, en concreto, de la filosofía y la teoría del derecho, a través de su objeto y sus intereses concretos, debemos responder la pregunta central del artículo: ¿es todavía necesario, en Brasil, el estudio de la sociología jurídica? Se ha respondido a la pregunta en base a la aceptación de que (a) el derecho es un fenómeno social, para (b) delimitar el objeto de la sociología jurídica, y por tanto (c) abordar el pasado y presente de la disciplina en Brasil, llegando a la conclusión de que (d) el momento presente en Brasil exige un estudio aún mayor de la perspectiva externa del derecho (sociología).
Brazilian law and legal culture in the XIX th century
Brazililan Law and Legal Culture in the XIX Century, 2018
After reviewing the place of legal history in Brazilian legal academia, and the theoretical basis of its recent development in the author's own work, the paper takes two paradigmatic fields of legal culture in 19 th century Brazil: the organization of the Judicial Power and the establishment of an Administrative Jurisdiction. Both reflect the importance of liberal conservative ideals in monarchical Brazil, and at the same time the importance of debates concerning the very idea of law and justice. The last two sections try to show how legal scholars were involved in these debates. Brasilianisches Recht und Rechtskultur im 19. Jahrhundert. Nach der Verortung von Rechtsgeschichte in der brasilianischen Rechtswissenschaft und der theoretischen Basis in der jüngsten Entwicklung in der eigenen Arbeit des Autors greift dieser Gastbeitrag zwei paradig-matische Felder der Rechtskultur im Brasilien des 19. Jahrhunderts auf: die Organisation der Judikative und die Gründung einer Verwaltungsgerichtsbarkeit. Beide spiegeln die Bedeutung liberal-konservativer Ideale im monarchischen Brasilien wider und zugleich die Bedeutung von Debatten über die Idee von Recht und Gerechtigkeit. Die letzten beiden Abschnitte versu-chen zu zeigen, wie Rechtswissenschaftler an diesen Debatten beteiligt waren. Legal scholarship and law itself have changed dramatically in the second half of the 20 th century. The creation of constitutional courts in several jurisdictions , the incorporation of social, welfare, and identity rights in constitutions , globalization, the presence of a transnational network of private actors in business transactions, the appeal to constant institutional borrowings and transplant across national borders, and finally the rise of the virtual world, all of these are important factors in the process of social and legal change. Legal theory has entered into a fruitful dialogue with new epistemological trends, such as analytical and hermeneutical philosophies 1). Legal historiography has also felt the influence of different strands of theory, many of them shaped *) Law School, University of São Paulo 1) In line with the wittgensteinian tradition as suggested by John Searle and the hermeneutic tradition of H.-G. Gadamer, particularly the way both traditions converge in the work of K a rl-O t t o A p el , starting with Transformation der Philo-DIESE DATEI DARF NUR ZU PERSÖNLICHEN ZWECKEN UND WEDER DIREKT NOCH INDIREKT FÜR ELEKTRONISCHE PUBLIKATIONEN DURCH DIE VERFASSERIN ODER DEN VERFASSER DES BEITRAGS GENUTZT WERDEN. BEITRAG AUS: ZEITSCHRIFT DER SAVIGNY-STIFTUNG FÜR RECHTSGESCHICHTE, GERMANISTISCHE ABTEILUNG
New Legal Realism, Legal Education and Legal Research in Brazil. What should we learn
Brazil is the country that has the largest number of law schools-around 1.3 thousand-and a large amount of law graduates-around 830 thousand licensed lawyers and another 1.5 million unlicensed law graduates, according to the official statistics. Not only that, but also the number of law schools in Brazil is greater than the sum of all the other law schools around the globe (just as an idea, the United States has 205 law schools and Australia has as few as 36). Our numbers are impressive and give us an enormous research potential-at least in terms of " human resources ". However, there is consensus that legal education and legal research in Brazil is still poor and obsolete. The majority of law schools uses only the system of lectures as a standard for teaching. And most of the research is just a matter of analysis of the legal text without any support from empirical data. Certainly, there are other inputs that influence this negative scenario, for instance, the increasingly massification of the Brazilian universities into profitable business models-e.g. we have the largest educational holdings in the world. All these-and others-inputs will be more deeply analyzed throughout this paper. In this sense, in legal education, the result is that only a small part of the Brazilian students achieve to be lawyers, as per around 80-90% of graduates fail the National Bar Examination. Even among those who pass, the legal knowledge is not exemplary. From the legal research standpoint, the results have also been disappointing. The optimistic side is that whilst most of " mass schools " still suffer from anachronistic and
Sociology of law in Brazil: A critical approach
The American Sociologist, 2001
The Sociology of Law in Brazil has consolidated in the last twenty years as a diffuse field, a field constituted by many other and by conceptual disputes among them. There are two great tendencies that, apparently, do not dialogue. On one hand, there is the Sociology of Law produced by jurists, which focus on the Law codes, aiming to synthesize a theoretical framework on the legal tools, their history and development. On the other hand, there is the Sociology of Law produced by the Sociologists, which studies the institutions of social control, the criminality and the relations of the different social groups to the law. This article aims to describe these tendencies and show how, despite the lack of dialogue, both of them converge to the same point: the prevalence of the formal discourse in the analysis of the social conflicts legally defined as "crimes". Pernambuco (UFPE) by professors Joaquim Falcão and Cláudio Souto. At the end of the decade, some publications that sought to standardize the "Sociology of Law" and some didactics manuals appeared. call the 1960s the "pioneering years" (anos de desbravamento) for the Sociology of Law in Brazil.
BRICS Law Journal, 2016
This study deals in a succinct way with the Brazilian model of civil procedural law. There is an historical approach specifically about Portuguese law which was in force in Brazil at the beginning (until 1832), after what there comes a brief description of the judiciary structure (courts and judges) and only then we talk about the scope of civil procedure, its fundamental principles and, in a "law in practice" approach, access to justice. The role of a judge towards deciding "according to statutes and evidence" is analysed and the current importance of case law is deeply focused, mainly according to the new CPC (in force since 2015) and so are appellate proceedings, class actions, enforcement proceedings and ADR. The last items concern the role and the importance of academia, and some interesting cultural observations, where we deal with the very serious crisis, both ethical and economic, that Brazil is living now, in the political sphere. The judiciary branch is now our only hope.
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.
Revista de Estudos Empíricos em Direito, 2016
This article is about the field of socio-legal studies and the sociology of the field. This division enables working with two dimensions of the author’s socio-legal scholarly personality, especially as it relates to Brazil. It is going to try to describe, not prescribe, and the description is very preliminary. It is in part meant to provoke responses and criticisms that will make the description better. Part one examines the rise and to some extent fall of the field of socio-legal studies in the United States. Part two will examine and make a preliminary contrast to a kind of parallel and contrasting story in Brazil. Part three moves to a different approach, a more sociological approach, focusing on lawyers as a point of entry into issues of law and state. Part four is the most tentative part of this talk as it a very preliminary contrast of the U.S. story with what I know preliminarily about Brazil in relation to the same issues of the place of law, elite production, hegemony, and...
FRANCO MONTORO AND THE PHILOSOPHY OF LAW IN BRAZIL (Atena Editora)
FRANCO MONTORO AND THE PHILOSOPHY OF LAW IN BRAZIL (Atena Editora), 2022
Montoro explains that “one of the functions of philosophy is precisely to try to answer or clarify the great problems that men pose to themselves in moments of reflection”. Based on these premises, this article approaches the vision of Franco Montoro and the Philosophy of Law in Brazil. in Brazil, which is already happening and resulting in the inclusion of Philosophy of Law as a mandatory subject in all legal courses in Brazil. There is no way to deny or minimize the importance of the Philosophy of Law. It is the one that criticizes, unifies and universalizes the various aspects of the legal phenomenon, also investigating its nature, its justification and its purpose; in short, it is through it that the concept, meaning and purpose of law can be perceived. In this respect, the Philosophy of Law is simply irreplaceable, or more than that, “it is inevitable”.