[Editor’s Note: This is the second entry in our symposium on the “30th Anniversary of the Brazilian Constitution.” The introduction to the symposium is available here.]
—Gustavo Ferreira Santos and João Paulo Allain Teixeira, Catholic University of Pernambuco, Federal University of Pernambuco, and National Council for Scientific and Technological Development (CNPq)
Brazil enacted a new constitution in 1988, looking for inspiration in post-war Europe, in particular the experiences of Portugal and Spain. These are both young democracies which once endured many years of authoritarian rule. However, there was still no consistent debate among lawyers and scholars as to how to bring the new Constitution into full effect. In fact, constitutional law was still marked by the consequences of an extended dictatorial past – that lasted more than twenty years-, in which the constitution itself held a very low legal status.
This is evident from a brief perusal of the first books dedicated to commenting on the new Constitution. Authors such as Ives Gandra da Silva Martins, Celso Ribeiro Bastos, José Cretella Jr., and Manoel Gonçalves Ferreira Filho interpreted the new text under the influence of previous experience. This ‘rearview mirror’ kind of interpretation can also be seen in the first rulings of the Brazilian Supreme Court (STF).
A gradual shift, however, was underway in discussion of the Constitution. The influence of European constitutional thought in the second post-war period had grown. Some constitutional scholars, such as Paulo Bonavides and José Afonso da Silva, already reflected this trend in their academic works. Younger constitutional lawyers accelerated the process. Suddenly, the debate was flooded by a set of institutes and concepts built in European jurisdictions. Friedrich Muller, Peter Häberle, Konrad Hesse and Robert Alexy (Germany), Gustavo Zagrebelsky and Luigi Ferrajoli (Italy), Pablo Lucas Verdu, Antonio Enrique Pérez Luño and Gregorio Peces-Barba (Spain) and José Joaquim Gomes Canotilho and Jorge Miranda (Portugal), for example, were very common bibliographic references in this debate. Some English-speaking authors, such as Ronald Dworkin, were also cited.
Under these circumstances, therefore, the debate over the Brazilian constitution was strongly influenced by countries with well-established constitutions, such as those in Europe and the United States. Many new methods of interpretation and judicial decision-making techniques were developed and applied. Constitutional law was characterized by topics such as the weighting of principles, proportionality test, the enforcement of fundamental rights in private relations and interpretation of statutes “according to the Constitution.” Such topics were usually associated with “neo-constitutionalism”[1], considered to be an innovative and anti-formalistic approach to Constitutional Law.
This discussion gradually affected the practice of judicial review. The so-called “neo-constitutionalism” became very useful if the aim was to augment the power of the interpreter and the judiciary thus found such discourse very appealing. Furthermore, the public image of the legislative branch of Brazilian government has experienced a number of crises in the past thirty years. This also encouraged jurists to adopt interpretations that shift decision-making power to the courts. This process has resulted in a strong version of constitutionalism. In fact, the change has gone further than strong constitutionalism in promoting a powerful interpreter, who enjoys a high degree of freedom. The effects of neo-constitutionalism on jurisdiction in its specifically Brazilian version contributed decisively to the expansion and influence of the judiciary over social relations. Although this phenomenon is not exclusive to Brazil,[2] the reception of the European model by Brazilian constitutionalism added further irrationality to the constitutional adjudication. Worse still, a reaction against problems in representative institutions has taken power away from political representatives and has legitimated a judicial authority that is not subject to effective checks and balances.
At present, enthusiasm regarding this process seems to be on the wane.
The current scenario does not provide many hints as to the future of constitutional law in Brazil. It could be argued that a more critical view has emerged. New protagonists in the debate are pointing to the inconsistencies of the hegemonic approach to constitutional law. However, the outcomes and findings of the debate on judicial practice continue to grow, not only regarding the exercise of judicial review, but also over criminal jurisdiction. It is ironic that a movement that aspired to promote the effectiveness of the Constitution has produced threats to the very guarantees that lie at its core.
The social content of the Constitution is currently under attack. The national Congress has recently drafted legislative and constitutional reforms that run contrary to the social features of the Constitution. The strong constitutional legal thinking that resulted from the neo-constitutionalist debate has not reacted to this and has found itself unable to protect legal integrity. On the contrary, it has partially adopted the discourse of those who attack the social constitution.
Subsequent to the introduction of the 1988 Constitution, there has been little reflection on other Latin American experiences. Studies of the new Latin American constitutionalism have been restricted to a few niches of the academic community and have not had any ramifications in terms of the institutional practices. Incipient debate over this topic only appeared after 2011 in studies that attempted to understand some aspects of the experiences of Venezuela, Bolivia and Ecuador. In constitutional practice, there was brief interest in Colombia, when the STF used the “unconstitutional state of affairs” decision-making technique.
It has taken thirty years for constitutional scholars to show greater interest in discussing international law. The debate regarding the role of international institutions has only moved up the agenda when Brazil was condemned by the Inter-American Court of Human Rights in 2010 for approving the Amnesty Law. This is a debate that still needs to be conducted in greater depth.
In conclusion, the debate surrounding the Brazilian Constitution, from its coming into effect in 1988 to the present day, has been marked primarily by adaptation to neo-constitutionalist European models of discourse. Little attention has been paid to other constitutions or the role of international law, although some efforts in this regard have been made in recent years. A certain disenchantment with the results of this trajectory may pave the way for other perspectives to emerge. It is to be hoped that the coming years will see a more open debate that is both amenable to other external influences and international institutions and cognizant of the specificities of Brazil’s own domestic challenges.
Suggested citation: Gustavo Ferreira Santos and João Paulo Allain Teixeira, The Challenge of Interpretation and the 1988 Brazilian Constitution, Int’l J. Const. L. Blog, Oct. 11, 2018, at: http://www.iconnectblog.com/2018/10/the-challenge-of-interpretation-and-the-1988-brazilian-constitution/
[1] We can understand “neo-constitutionalism” as a set of interpretative theories that is connected to the appearance of post-postivism in the context of the transformations occurred in Europe European after World War II.
[2] On this subject, Ran Hirschl in Canada has already referred to a “Juristocracy” and Tate & Vallinder, since the 1990s, have been referring to the “Global Expansion of the Judiciary Power.”
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