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48-636: The new text has 2,046 articles organized as follows: General Part: Special Part: The history of Brazilian law , combined with local elements, is intertwined with the history of Portuguese law , which includes the influence of Roman , Germanic and Canon law. After Brazil's independence , the imperial government enacted a bill to maintain the Philippine Ordinances and all previous Portuguese legislation, which had flaws and contradictions, in force in Brazil. The 1891 constitution required

96-598: A law school . Upon completing their studies, they need to pass an exam held by the Bar Association of Brazil ( Ordem dos Advogados do Brasil in Portuguese). The overall median income of the Brazilian lawyer was R$ 36,120 per year in 2007. The starting median income was R$ 20,040, and the top median was R$ 3,000,000. The Brazilian judge had an overall median income of R$ 170,000. The starting median income

144-520: A civil code to be drafted as soon as possible. Consequently, a multitude of laws, assents, charters, resolutions and regulations were issued to complement or modify the Legislations. Once independent, the code needed to develop in accordance with the needs of its people. The interest aroused by the Napoleonic code and the theory of codification influenced Brazilian jurists, and the creation of

192-429: A lawyer". Roberto Campos , economist, ex-senator and Minister of Planning of Brazil in the early years of the military dictatorship noted that "The OAB has achieved the feat of being mentioned three times in what he defines as the "besteirol Constitution" of 1988. According to him, "it's perhaps the only case in the world where a club of professionals has enshrined the constitutional text." The Constitution of Brazil

240-557: A long history of failures and successes. The choice of Clóvis Beviláqua to draft the civil code received a lot of criticism, since the country had more experienced and prestigious jurists. However, he was undeterred, and after numerous modifications made by the commission, his work was completed and approved in the House of Representatives, although much later due to Rui Barbosa 's opposition. The first Civil Code had only 1,807 articles, short and few paragraphs, whose main characteristic were

288-613: A recent constitutional reform (Amendment to the Constitution 45, passed in 2004) has introduced a mechanism similar to the stare decisis , called súmula vinculante. Nevertheless, according to article 103-A of the Brazilian Constitution , only the Supreme Court is allowed to publish binding rules. Inferior judges and courts, and the public administration, are hence obliged to obey the interpretations of

336-546: A reserved percentage of jobs in public service and large companies, and Afro-Brazilians to seek reparation for racism in court. Breaking with the authoritarian logic of the previous Constitution, it made unbailable crimes those of torture and of actions directed against the democratic state and the constitutional order , thus creating constitutional devices to block coups d'état of any kind. The Constitution also established many forms of direct popular participation besides regular voting, such as plebiscite, referendum and

384-564: A slow judicial system. Brazil has the 30th slowest judiciary among 133 countries, according to the World Bank . This has caused the judiciary to use provisional arrests as an advance of the sentence. In 2015 more than 40% of prisoners in Brazil were provisional. A World Bank study criticized the 1988 Federal Constitution for extending the privileges of civil servants, aggravating income inequality in Brazil. Remuneration and retirement are disproportionately high according to studies. In 2015,

432-547: Is composed of nine titles, subsequently divided into chapters and then articles. The articles are in turn divided into short clauses called incisos (indicated by Roman numerals ) and parágrafos (indicated by numbers followed by §). The Constitution refers to the country as "the Union". The preamble to the Federal Constitution is a brief introductory statement that sets out the guiding purpose and principles of

480-465: Is criticized by some. Some criticize an alleged excessive power granted to the Order of Attorneys of Brazil by the Constitution. Brazilian philosopher and journalist Hélio Schwartsman considers that the 1988 Constitution conferred "disproportionate powers" on lawyers such as "appointing judges, writing laws, proposing direct actions of unconstitutionality, defining who can and who cannot become

528-446: Is one Court of Justice ( Tribunal de Justiça in Portuguese). Courts of Justice are courts of appeal, meaning they can review any decisions taken by the trial courts, and have the final word on decisions at state level, though their decisions may be overturned by the federal courts. Some states, such as São Paulo and Minas Gerais , used to have a Court of Appeals ( Tribunal de Alçada in Portuguese) which had different jurisdiction. But

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576-883: Is the supreme law of the country. This Constitution has been amended many times. Other important federal law documents in the country include the Civil Code , the Penal Code , the Commercial Code, the National Tax Code, the Consolidation of Labor Laws , the Customer Defense Code, the Code of Civil Procedure, and the Code of Criminal Procedure. Brazil's laws are run by the executive, judiciary and legislative branches. In these branches,

624-554: The Brazilian Constitution ). The STJ is the Brazilian highest court in non-constitutional issues and grants a Special Appeal ( Recurso Especial in Portuguese) when a judgement of a court of second instance offends a federal statute disposition or when two or more second instance courts make different rulings on the same federal statute. There are parallel courts for labor law , electoral law and military law . The STF grants Extraordinary Appeals ( Recurso Extraordinário in Portuguese) when judgements of second instance courts violate

672-777: The Executive , the Legislative and the Judiciary , and lists the nation's main goals. One of the most important excerpts from this title is in Article 1, single paragraph, stating: All power emanates from the People, who exercise it through elected representatives or directly, under this Constitution. Title 2 states the Fundamental Safeguards. It ensures basic rights to all citizens and foreigners residing in

720-520: The New Republic (Nova República). Made in the light of the Brazilian transition to democracy , it resignified the role of the state in the citizens' lives, providing a vast system of human and individual rights protection, social welfare, and democratic tools. The 1988 Brazilian Constitution is the seventh enacted since the country's independence in 1822, and the sixth since the proclamation of

768-735: The President of Brazil is in charge of the executive branch. The judiciary branch is made up of the Superior Court of Justice and the Supreme Federal Court . Brazil's legislative branch encompasses the National Congress of Brazil . Brazilian law is largely derived from Portuguese civil law and is related to the Roman - Germanic legal tradition. This means that the legal system is based on statutes, although

816-422: The citizens' initiative . Examples of these democratic mechanisms were the 1993 plebiscite concerning the form of government, where the presidential system was confirmed, and the 2005 firearms and ammunition referendum . The mention of God in the preamble of the Constitution (and later on the Brazilian currency) was opposed by most leftists as incompatible with freedom of religion because it does not recognize

864-645: The 45th Constitutional Amendment to the Brazilian Constitution , in its article four, decreed their extinction in order to simplify the second instance structure. Second instance judgments are usually made by three judges , called desembargadores. These Courts are divided into civil chambers, which judge civil cases, and criminal chambers. Judges of the Courts of Justice overview one another. A Court can expel any judge who has displayed unethical behavior. The five regional Federal Courts have jurisdiction over circuits of several states and tend to be headquartered in

912-414: The Brazilian state, in 2017, to have stakes in more than 650 companies, involved in one-third of the national GDP. This model also created restrictions for the performance of foreign companies in several fields with harmful consequences for the country's growth. In the view of some scholars, this economic model favors patrimonialism and corruption . The Constitution is also responsible for creating

960-486: The Country, prohibits capital punishment , defines citizenship requirements , political rights , among other regulations. Title 3 regulates the state organization. It establishes Brasília as the nation's capital, describes the rights and duties of the states, the municipalities, as well rules for the public staff. Title 4 is about the branches of government. It describes the attributes for every government branch, and

1008-621: The Courts. In 2007, there were 1,024 Law school programs in Brazil, with 197,664 law students . Law schools are present in each of the States of Brazil . In 2010, the total of lawyers in Brazil were 621,885. The State of São Paulo had the largest number, 222,807 lawyers, one third of all working lawyers in the country. The State of Rio de Janeiro had 112,515 lawyers, and the State of Minas Gerais had 63,978 lawyers. Students studying law in Brazil take five years to complete their education at

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1056-479: The Federative Republic of Brazil ( Portuguese : Constituição da República Federativa do Brasil ) is the supreme law of Brazil . It is the foundation and source of the legal authority underlying the existence of Brazil and the federal government of Brazil . It replaced the autocratic 1967 constitution capping 21 years of military dictatorship and establishing Brazil's 6th republic, also known as

1104-499: The Privileged Forum expired. Also criticized is the requirement of unappealable transit for the execution of the sentence. For Judge Sergio Moro , waiting for the final judgment will contribute to impunity. According to Minister Teori Zavascki after confirming a second sentence, one could no longer speak of the principle of non-culpability, since "the exceptional remedies, for the superimposition courts, do not boast

1152-557: The Senate and House of Representatives in 2001, and after numerous amendments made to adapt the draft to the new constitutional reality, it was sanctioned by President Fernando Henrique Cardoso in 2002. An important change in the new code is the unification of civil and commercial law in a single text, the consequence of adherence to the theory of the company, initially adopted by the Italian Civil Code of 1942, promulgated by

1200-534: The Supreme Court. In more recent times, according to the judiciary structure framed in the Brazilian Constitution, judicial power is divided between the judicial branches of the states and the Federal judicial branch, and they have different jurisdictions . The prerogatives and duties of judges are the same, however, and the differences lie only in the competencies, structures and compositions of

1248-456: The ability to review facts and evidence". In the electoral aspect, the Constitution adopted the mandatory vote. Among the 15 largest economies in the world, Brazil is the only country in which voting is mandatory. A 2014 survey showed that the mandatory vote is rejected by 61% of Brazilians. Some question whether it is democratic to compel people to vote. The Constitution adopted the social democratic model of State organization, as defined by

1296-441: The capital of each state and have jurisdiction only over their State territories. The Federal District only presents the federal-level judicial branch. Each comarca has at least one trial court, a court of first instance . Each court of first instance has a law judge and a substitute judge. The judge decides alone in all civil cases and in most criminal cases. Only intentional crimes against life are judged by jury . The judges of

1344-572: The columnist for the newspaper O Estado de S. Paulo Luiz Sérgio Henriques . For professor and lawyer Marco Aurélio Marrafon , president of the Brazilian Academy of Constitutional Law, the 1988 Brazilian Magna Carta organized the State according to the Welfare State model, in which it is intended to reconcile "the liberal component of preservation of individual rights and limitation of state power, with direct economic intervention and

1392-514: The constitution. The STF is the last instance for the writ of habeas corpus and for reviews of judgments from the STJ. The superior courts do not analyze any factual questions in their judgments , but only the application of the law and the constitution. Facts and evidences are judged by the courts of second instance, except in specific cases such as writs of habeas corpus . Constitution of Brazil Recent elections The Constitution of

1440-420: The courts are nominated after a selection process. There are specialized courts of first instance for family litigation or bankruptcy in some comarcas . Judgments from these district courts can be the subject of judicial review following appeals to the courts of second instance. The highest court of a state judicial system is its court of second instance, the Courts of Justice. In each Brazilian state there

1488-566: The document. The text reads: We, the representatives of the Brazilian People, assembled in the National Constituent Assembly to institute a Democratic State for the purpose of ensuring the exercise of social and individual rights, liberty, security, well being, development, equality and justice as supreme values of a fraternal, pluralist and unprejudiced society, based on social harmony and committed, in

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1536-617: The errand of injunction and the habeas data . It also anticipated the existence of a Consumers' Defence Code (enacted in 1990), of a Children's and Youth Code (1990) and of a new Civil Code (2002). It was the first constitution to demand severe punishment for breaches of civil liberties and rights. Consequently, Brazil later approved a law making the propagation of prejudice against any minority or ethnic group an unbailable crime. This law provided legal remedy against those who spread hate speech or those who do not treat all citizens equally. This second aspect helped disabled people to have

1584-795: The fascist government of Benito Mussolini . Law of Brazil Recent elections The law of Brazil is based on statutes and, partly and more recently, a mechanism called súmulas vinculantes . It derives mainly from the European civil law systems, particularly the Portuguese , the Napoleonic French and the German (especially the German Civil Code ). There are many codified statutes in force in Brazil. The current Federal Constitution , created on October 5, 1988,

1632-502: The federal government's deficit associated with the retirement of the approximately 1 million government employees was greater than the total registered with 33 million private pensioners. For the World Bank, civil servants are among the richest fifth of the Brazilian population. For Roberto Brant , the Federal Constitution was captured by groups of civil servants in 1988. Philosopher Fernando Schüler maintains that Brazil went against

1680-469: The first two law schools in the country and the growing production of national legislation, replacing Portuguese legislation, maintained a steady legal emancipation. The jurist Augusto Teixeira de Freitas was entrusted with the consolidation of the legislation in force and the drafting of the civil code for the Empire . He published his incomplete work and called it a sketch, demonstrating his understanding of

1728-414: The grain in the 1980s: "While the world tried to adjust the State to globalization and modernize public management, Brazil bet on a super bureaucratic state in the 1988 Constitution. We offer rigid stability in the employment for civil servants, we mix careers of State with common careers of the public service, we create the law of biddings, we cast the budgets and we eliminate any space for the meritocracy in

1776-409: The importance of the project and the necessity of a broad discussion. Disgusted by the delay in the commission's review of the project and the silent contempt his work received, Freitas suspended the execution of the contract. However, it is evident the influence his text had on South American codes. The different attempts made by several Brazilians inspired others, revealing a historical solidarity and

1824-495: The internal and international spheres, to the peaceful solution of disputes, promulgate, under the protection of God, this Constitution of the Federative Republic of Brazil. Title 1 is devoted to the fundamental principles of the Union. It describes the States , the municipalities and the Federal District as the indissoluble constituents of the Union. It also establishes three independent, harmonic government branches:

1872-433: The largest city of their territory. The regional courts are: There are two national superior courts making up the Supreme Court, which grant writs of certiorari in civil and criminal cases: the Superior Court of Justice ( Superior Tribunal de Justiça in Portuguese) or STJ and the Supreme Federal Court ( Supremo Tribunal Federal in Portuguese) or STF, the highest Brazilian court (decides issues concerning offences to

1920-399: The original and national style. It was more concerned with the precision of the language and concepts rather than the effective practical application of the precepts. It was conservative, especially in its provisions on the family, with a complete rejection of social aspects. The drafting of the 2002 Code was entrusted to Miguel Reale , who invited other jurists to help him. Once the project

1968-423: The promotion of public policies, in order to redistribute resources and reduce social inequalities." In order to finance the Welfare State, it was necessary to raise the tax burden, which went from 23.4% of GDP in 1988, to 33.6% of GDP in 2005, and to link budget revenues. Thus, the Union reached 93% of mandatory spending in 2017, decreasing the room for maneuver by the government and affecting investments. This option

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2016-560: The public area." For jurist Modesto Carvalhosa , only a new "principiological" constitution would end the privileges of the 1988 Constitution. The Federal Constitution of 1988 is also criticized for having adopted one of the broadest Special Forums in the world, which jurists argue encourage corruption. A quarter of the actions with a Privileged Forum take more than ten years to be judged. The Supreme Federal Court takes 1,300 days to judge criminal actions by persons with privileged jurisdiction. Between 2001 and 2017, 200 actions involving

2064-422: The republic in 1889. It was promulgated on 5 October 1988, after a two-year process in which it was written from scratch. The current Constitution of Brazil was drafted as a reaction to the period of military dictatorship , and sought to guarantee individual rights and restrict the state's ability to limit freedom, to punish offences and to regulate individual life. Among the new constitutional guarantees are

2112-400: The rights of polytheists such as some indigenous peoples or of atheists . The Supreme Federal Court has ruled that this commission of the protection of God was not unconstitutional since the preamble of the constitution is simply an indication of principles that serves as an introduction to the constitutional text and reflects the ideological conceptions of the legislator, falling within

2160-406: The rules for amendments to the Constitution as well. Title 5 regulates the defense of the State and its democratic institutions. It rules the deployment of the armed forces , the national security baselines, and declaration of state of emergency . Title 6 comprises taxation and the nation's budget. It disposes on budget distribution among the Union's components and their competencies, and

2208-519: The scope of political ideology and not of the Law. The Federal Constitution of 1988 is criticized in the doctrine for being very extensive, long-winded, and analytical. This characteristic forced the Constitution to be amended several times, in politically costly processes, to adapt to changes in society Another criticism is that the 1988 Federal Constitution reproduces a model of state capitalism , expanding state monopolies and regulations, which allowed

2256-523: Was R$ 150,500, and the top median was R$ 310,500. The Brazilian prosecutors had an overall median income of R$ 150,000. The starting median income was R$ 140,000, and the top median was R$ 270,000 per year. Nowadays, Brazilian judges and prosecutors, in almost all states, earn the same, and, in some states, prosecutors have a higher income. Each state territory is divided into judicial districts named comarcas , which are composed of one or more municipalities . The 27 Courts of Justice have their headquarters in

2304-455: Was completed, it was heavily criticized, as it abdicated the requirement to be a modern law in exchange for comfort and old-fashioned solutions. After amendments, it was approved by the Chamber of Deputies in 1983, but due to the re-democratization of the country and the drafting of the new Constitution , the work was interrupted and fell into oblivion. Abruptly revived, the bill was approved in

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