Rights beyond the courtroom (original) (raw)
Related papers
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.
Judicialization of Socio-Economic Rights in Brazil: The Subversion of an Egalitarian Discourse
SSRN Electronic Journal, 2012
This article describes the historical origins of the Brazilian constitutional frame of socioeconomic rights, and the political context that lead to their enforcement through the Judiciary. Based in a particular constitutional text that asserts socioeconomic rights' immediate enforceability, the present theoretical comprehension is that they establish the State's obligation to provide goods and services. The consequence is an intense judicialization of rights such as health, education and housing, which results in a wide exercise of judicial activism in controlling public policieswith the Judiciary renouncing to the objective rational criteria consubstantiated in the law, and to an approach that may consider the collective dimension in which such rights should be assured. The major result is the egalitarian ideal inherent to socioeconomic rights being defeated by a chaotic adjudication of rights in a non-discerning basis.
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.
Concentrated judicial review in Brazil and Colombia: which (or whose) rights are protected?
Journal of Constitutional Research / Revista de Investigações Constitucionais, 2020
Over the last few decades, judicial power has expanded, especially in constitutional or supreme courts. Recently, scholars in comparative constitutional law have focused their attention on analyzing the causes and consequenc- es of this expansion in different constitutional systems. There are still no studies that compare the role played by constitutional or supreme courts in the defense of in- dividual and social rights, specifically with regard to the link between the protection of rights and the extent to which social actors are granted standing to assert con- stitutional claims. This paper intends to provide some thoughts on this issue. The text will analyze the relation- ship between the protection of rights and the extent to which plaintiffs are granted the right to file constitutional claims in Colombia and Brazil. We conclude that the com- parison between Brazil and Colombia presents relevant insights into how the dimension of authority, specifically standing to access the main courts in each system, can make a large difference in the protection of social and individual rights.
Studies on courts in Latin America have increasingly focused on high court behavior and its relationship with governments, explaining patterns of judicial activity with variables of institutional design, judicial preferences, and political context. In this paper, we point to additional complexities in the interaction between the variables discussed in the literature. First, as judicial preferences can directly shape institutional design, we argue that understanding transformations in patterns of judicial politics over time requires us to consider processes of building judicial power as relatively independent from the actual use of judicial power. Second, in this picture, the role of the political opposition is more crucial. Existing studies have largely tried to understand judicial behavior in relation to the incumbent government, which is decisive in shaping the strategic incentives around the use of judicial power. In the building of judicial power, however, the opposition plays a more crucial role. We illustrate these propositions in a brief discussion of all the Mandados de Segurança (MS) filed before the Brazilian Supreme Court between October 1988 and May 2016. These amparo-like remedies, although designed to have very limited scope and to reach the Supreme Court in rare circumstances, have expanded over time, as a tool for the exercise of judicial power in the political arena, through the interaction among judges, the political opposition and political minorities in general. The central role the MS have taken in Brazilian politics cannot be accounted for if we focus just on the relationship between the court and the incumbent government. The dynamics around these lawsuits illustrate a kind of partnership between the court and the opposition that, however inconsequential in the short run might create more favorable conditions for the future judicial exercise of power. [Paper published in the "Revista Uruguaya de Ciencia Politica, Nº 27, Vol. 1, 2018]
With the emergence of Modern Constitutionalism after the two great World Wars, it is possible to observe a continuous increase of judiciary activities in society. If before the great Wars, the Executive Power had preponderance and the spotlights were directed to its activities, now the jurisdiction gradually gained institutional strength. It was in this conjecture that the concepts of the “Constituição Dirigente” (Directing Constitution) and “Garantismo Constitucional” (Constitutional Garantism) emerged, the latter understood as a set of normative and institutional mechanisms of a legal-political system that organize the powers of the State and protect the fundamental rights of citizens. The strengthening of the jurisdictional role seemed inevitable due to the historical conjecture in which postwar events unfolded, because of the jurisdictional preponderance eventually brought to light two widely observed phenomena: judicialization of politics and judicial activism
The Brazilian Constitution: Context, Structure and Current Challenges
Br. J. Am. Leg. Studies, 2020
The Brazilian Constitution was enacted over 31 years ago, and it pioneered several constitutional changes in Latin America, in line with a transformational project which was to be achieved through the protection of human rights including socioeconomic rights. Three decades of this constitutional experience have highlighted aspects in which the original design has proven to be too ambitious, and not capable of overcoming political blockages as was originally intended. This Article describes the historical context in which the Brazilian Constitution was drafted and enacted, and discusses in general terms the political structure and the fundamental rights that the constitution provides. These baselines allow the reader to understand the current challenges that the Constitution now faces in the task of regulating a social ambience and collective expectations that are substantially different from those of the late 1980s which are synthesized in that same political document. Especial attention is given to judicial control over public policies-a relevant trend in the Brazilian judiciary, which raises much debate concerning its compatibility with the checks and balances principle. As a conclusion, the Article recognizes that the Brazilian Constitution is an institutional success, considering its ability to enable redemocratization, and even to overcome deep political crisis. This should not, however, be enough reason to take its strategy in the human rights field, as a successful one, to be uncritically reproduced in other countries.
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.
2011
I n a context where the amount of cases being processed in the justice system reaches the extraordinary figure of 67.7 million-which is equivalent to one case for every two people over the age of 20-and where higher court decisions, such as those by Superior Electoral Court (TSE) and the Supreme Federal Court (STF) have directly affected the relationships among the branches of power and redesigned Brazilian polity, the publication of Matthew Taylor's Judging policy could not be more opportune. More than that, the well-deserved recognition by the Brazilian Association of Political Science, which awarded him with the "Victor Nunes Leal" prize for best Political Science book (2007-2008), does justice not only to the quality of the work but also reflects the importance achieved by the area of political studies of the Judiciary in the Brazilian political science community. As the book well highlights, the past 20 years in Brazil's democracy cannot be analyzed without reserving a special place for the role played by Justice institutions. During this time, judges and members of the Public Ministry (MP) have played a decisive role in fulfilling the principles of the 1988 Constitution, in arbitrating the relationships among the branches of power and among the federative entities, in the definition of and adjustments to the main public policies implemented by the various administrations, thus affecting, it could be said, the dynamics of the democratic regime as a whole. The triple transition in the 1980s and 1990s-political regime, State and economic model-was marked by the clash between adverse trends and often by collisions between government policies and constitutional principles. In the various conflicts involving administrations, political parties and civilian bpsr (2008) 2 (2) 139 138-145 bpsr 139 Rogério Arantes society organized forces, the Judiciary was called upon to intervene. From the notorious plans against inflation in the 1980s to the most recent Growth Acceleration Program (PAC), governmental economic measures have had to undergo thorough judicial reviewing. In a recent recap of PAC works, minister Dilma Roussef, the mind behind the plan, praised