The Law of Brazil

by: Nick Oberheiden
Filter by: Sources of Law
Enter the category for this item: Primary

Article 59 CF displays the following sources of law as well as the following order of priority of these sources of law:

• Federal Constitution (Constituição Federal)
• Constitutional Amendments (Emendas à Constituição)
• Complementary Laws (Leis Complementares à Constituição)
• Ordinary Laws (Leis Ordinárias)
• Delegated Acts (Leis Delegadas)
• Provisional Measures (Medidas Provisórias)
• Legislative Decrees (Decretos Legislativos)
• Resolutions (Resoluções)

1. Constitution-Related Acts

The principle of the supremacy of the Constitution follows that the Brazilian Constitution of 1988 is the supreme law of the land. The Constitution binds all public actors, all state departments and all powers.

- Constitutional Amendments (Emendas à Constituição) or complementary laws can change the existing constitutional text. Regarding the amendments, the initiative to propose them is more restricted than that required for the ordinary legislative procedure. The only ones allowed to do so are the following: the President; at least one third of the members of the house of representatives; at least one third of the members of the Senate; or a petition of more than half of the Brazilian states legislature. Constitutional amendments require a two-fold reading in both houses as well as the approval of at least three-fifths of both houses. Upon adoption of a constitutional amendment, the President does not have to consent or sign it for it to be effective, because constitutional amendments are within the original, non-delegable area of the legislature. The federalist principles that build the country; the direct, secret and periodic suffrage exercised by the citizens; certain fundamental freedoms and the separation of powers principle are written on the Constitution, are invariable and thus cannot be amended.

- Complementary Laws (Leis Complementares) serve to complement and fill in the gaps of the Constitution, without changing the text of the Constitution itself. Complementary laws are exactly that – complementary. They are, thus, not part of the Constitution; however, they need to be ratified by an absolute majority in both houses and need the President’s approval.'

2. Ordinary Acts

- Ordinary Laws (Leis Ordinárias) are laws in the traditional sense. They originate in the legislature and are adopted under the ordinary legislative procedure. An ordinary legislative procedure consists of seven steps:

(a) Legislative Initiative
(b) Debate
(c) Vote
(d) Ratification
(e) Approval or Veto by the President
(f) Promulgation of laws
(g) Publication

Depending on the degree of controversy, the process can take different amounts of time. Major legislative projects such as the redesign of the Civil Code of 2002, often forego several years, if not decades of preparation and debate.

The legislative process may begin with the legislative initiative in one of the two houses; with the Supremo Tribunal Federal; with one of the highest federal courts; with the Federal Attorney-General or a citizen initiative that must be submitted to the House of Representatives. A bill introduced by a Senator begins in the Senate; as the one presented by a member of the House, by the President or by the Supreme Court, etc. must start in the House of Representatives. The House is also the gateway to the extra-parliamentary initiative. The bill will first be looked at by the Constitution and Justice Committee and then it will go to thematic committees according to the bill’s content. The Constitution and Justice Committee can do a preventive “judicial review”. If they think the case is unconstitutional, the bill will be archived. After discussion and after an opinion is emitted, the bill will be sent to the full house for a bout of discussion and voting. If it is approved, it will go on to the next house and the same process will be repeated. If finally a majority in both houses approves the bill, it will be forwarded to the President.

The President may, within 15 days, approve the entire bill, reject the entire bill or, in the case of a partial veto, approve some parts within it, but the president cannot simply approve individual words. The veto must be express: the veto must be manifested within 15 days of receipt by the president, for his silence shall be considered approval; therefore, there is no “tacit veto” in Brazil. The Congress has 30 days after publication of the veto to overrule it. If the veto is not maintained, the bill – that will have just become law – will be submitted for promulgation by the President as a matter of law, regardless of his approval.

The law must be published, since October 1st, 1862, in the Diário Oficial da União - The Federal Official Gazette. The gazette will publish the laws, constitutional amendments; decrees and other legislative acts, international treaties and conventions, and all other adopted by the National Congress such as international acts, normative provisional measures and other acts of the President; some acts of the Attorney General; decisions of courts with a normative effect as well as certain administrative information, such as unfilled vacancies.

- Delegated Laws (Leis Delegadas) are normative acts issued by the head of the executive branch at the federal, state and municipal levels, at the request of the Legislature, pursuant to Article 68 of the Constitution. The chief executive seeks authorization and the legislature defines its object, content, principles and terms of exercise. After the law is created by the Chief Executive, it is sent to the legislature for review and approval.

- Provisional Measures (Medidas Provisórias): is a normative act issued by the President but is seen as law. It can only be used upon extraordinary urgency and necessity and it shall remain in force for 60 days, renewable for another 60. After this period, if Congress does not approve it by converting it to law, the measure loses its effectiveness.

- Legislative Decrees (Decretos Legislativos) are legislative initiatives used by the national Congress alone, which do not require any presidential voice. It’s mostly used in the approval of presidential initiatives, for which a simple majority of Congress is sufficient. Rules establishing its procedure are not provided for in the Constitution, but in Congress’s own bylaws.

- Resolutions (Resoluções) are rules of law intended to regulate the internal affairs of the Congress. They are normative administrative acts that depart from superior authority other than the chief executive, which regulate specific matters within Congress’s competence.

3. Court Decisions

The basic idea of the legislature as the sole creator of the law and the courts as a corresponding "judicial slot machine" (Roscoe Pound) is - if it ever was, in truth, compliantly obsolete Brazil. It is true that Brazilian courts do not have the tradition or authority to create law itself, so there is barely any case law (precedentes). But it is also to be specified that, in a country where the majority of federal laws are issued by the federal legislature and executive decrees, Montesquieu’s classic model of separation of powers should not expect different rules.

Court decisions actually play an important role in the Brazilian legal system, in its law development, and not least, legal harmonization. Largely responsible for this are two special features. In exceptional cases, in concrete procedural decisions, the Supremo Tribunal reaches verdicts that are seen as final authority, producing an erga omnes effect. Secondly, there is still a dogmatic strange expression of the Anglo-American doctrine of stare decisis: the so-called súmulas vinculantes.

Súmulas are issued by the Supreme Court and they are similar interpretations of constitutional law. This is not more than a few lines of regularly comprehensive interpretation statements reflecting, in a highly concentrated and logical form, what is known in Germany as "case law" or in France as "jurisprudence constant". Unlike these countries, however, established by the 45th Amendment to the 1988 Constitution, these súmulas are primarily made to prevent a constant multiplication of lawsuits with the same content and constitutional issue. Since 2004, all courts in the country as well as all law enforcement agencies have been formally bound by the Supreme Court súmulas. The 2004 newly inserted Article 103-A of the Constitution of 1988 reads as follows:

“The Supremo Tribunal Federal shall have the power, through its own initiative or through judicial review, following a decision made by two-thirds of its members, after several decisions have been made on the same constitutional matter, to approve a súmula which, after publication in the official Gazette, shall have a binding effect on all judicial bodies and courts, on direct and indirect public administration at the federal, state and municipal levels as well as have the power to review such súmulas or repeal them in a way prescribed in law.”

(1) The súmula will have as its content the validity, interpretation and effectiveness of certain matters, about which there is current controversy between federal and state courts or between these and the public administration, which entail serious legal uncertainty and relevant multiplication of suits on identical issues.

(2) Any administrative or legal decision that violates any applicable súmula or uses it in an illegal manner can be challenged before the Supremo Tribunal Federal, which by ruling in favor of whoever is appealing, will annul the administrative act or the judicial decision at issue and will determine that another be issued with or without the application of the súmula, as appropriate.

Overview: Súmula Sample

Súmula No. 365 states that legal entities (pessoas jurídicas) do not have the right to file a popular suit (Ação popular). Printed, it looks like:
365th Pessoa Jurídica Não Tem Legitimidade Para Propor Aҫão Popular (Legal Entities do not have standing to propose Popular Suits)

Legislaҫão: - CF/46 art. 141, § 38 Julgados: - RE 52.398, em 17-5-1963 (RTJ 29/42) NOTE: Com o a advento da Lei 4.717/65, que regula a Aҫão Popular, o legislator não contemplou a pessoa jurídica entre os sujeitos ativos para sua propositura, consolidando, dessa forma, o entendimento sumulado.

Súmulas vinculantes are among the most controversial reforms of the Brazilian legal system of modern times. Opponents see the Brazilian democracy as a system at risk, in which a few judges are able to impose on judges across the country, as they have to decide the same legal problems. On the other hand, those in favor argue for its practicability in terms of striking down the slowness of emitting opinions and judging lawsuits along with the consequent interpretive unification conferring homogeneity and predictability to the system. The large number of advocates of reform noted, for example, that the súmulas represent the only currently effective way to alleviate the enormous flood of cases reaching the Supremo Tribunal Federal annually. With an avalanche of more than 100,000 new cases per year (compared to the structurally similar U.S. Supreme Court hears about 70 cases per year), the Brazilian Supreme Court is regarded as notoriously overloaded. In sum, we can say that the adoption of súmulas in the Brazilian legal system is not the solution to all the problems that afflict its legal world, but it is certainly one of the available tools to law interpreters and enforcers in the relentless pursuit of a better and more effective judicial service.
Enter the category for this item: Secondary
Article 4 of the Introductory Act to the Civil Code postulates that when the laws are silent, judges have to decide matters in accordance with analogies, customs and general principles of law. Similarly worded, Article 126 of the Brazilian Code of Civil Procedure states that the judge is not exempt from reaching a verdict alleging gap or obscurity in the law: when deciding a case, the judge shall apply the laws and in its absence, resort to analogy, customs and general principles.

- General Principles of Law: As in many other countries of the Roman tradition, general principles of law in Brazil are listed as (additional) sources of law. Concepts, contours and use of general principles of law in the Brazilian legal doctrine are lively debated. The majority of Brazilian scholars justified the inclusion of general legal principles to the sources of Brazilian law, pointing out that positive law is based and embodied ultimately on principles of law. Unwritten general principles of law, in any case, play virtually no role outside commercial law practices. Moreover, when a habit acquires “legal personality” thus becoming a principle of law, the habit may not conflict with existing laws and must be known as a long, continuous and accepted tradition in many parts of society.

- Equity (Equidade) plays an important role in Brazil with questions dealing with constitutional matters. Article 5 of the Introductory Act to the Civil Code provides that the court has to take into account the social dimensions of its decisions when applying the law. A judge can only refer explicitly to equity in those cases where the relevant legislation permits them to do so. This is in accordance with Article 127 of the Code of Civil Procedure. Other examples with nominated mention of fairness can be found scattered in a variety of laws, including The Labor Act (on Article 8 of the Consolidação das Leis do Trabalho - CLT), the Consumer Protection Act (Article 4 of the Código de Defesa do Consumidor - CDC) and the general law of contracts. Moreover, constitutional guidelines radiate through the "constitutionalization of the law" and the so-called “estado social” impact on other areas of law.

The works of eminent legal scholars also have a significant impact on the decision of a Brazilian judge. Especially with new issues, such as stem cell research, scientific works of well-known professors are seen as a non-binding authority in decisions of all Court levels, and are consulted and cited both at home and abroad.

Enter the category for this item: Interpretation
There is no ideal method or “correct interpretation” of Brazilian laws, for any method that has its axis value in justice and that produces an outcome guided by criteria of rationality, is worthy to be used because it will be in line with the constitutional jurisprudence produced after the current Constitution became valid. Three traditional methods are commonly used to determine the significance of laws that are being applied: literal/grammatical, historical and systematic.

- Literal/Grammatical: The aim of this type of interpretation is to determine the meaning that is being expressed through particular words. Words are (im)perfect symbols used to communicate and link the legislature’s intentions to the actual applicability of the law, but they may sometimes contain ambiguity and their meaning may vary throughout time. Due to the “instability” and difficulty in making the correct assumption of what each word that has been written down as law truly meant and still means, this method of interpretation is not commonly used: 1) those words may not have meant the same thing to each of the lawmakers; 2) society advances and technology plays a big role within it; 3) interpreting what a word grammatically means in a certain way, might bring unfair results which the Constitution itself tends to avoid. This method sets out the area and the limits within which words may be interpreted and used by the law. Today, grammatical interpretation should only be used as the starting point of the interpretation of a rule, because by grammatically and literally interpreting an article or clause, the Court can draw hermeneutical conclusions that are significantly unfair compared to other channels of interpretation (dura lex). There are several interpretive methods available to the interpreter, who must know where and how to apply and adapt them into an actual case.

- Historical: The historical interpretation draws on the interpretation of the law by focusing both on the general historical context and the specific legislative history of the Act. It consists in finding the remote and immediate antecedents that preceded it and were part of a major picture of why the law turned out to be what it is up to the current day. To understand the law’s current meaning, the Judiciary needs to understand its past and what happened before its ratification. i.e.: while interpreting a constitutional article using the historical method and seeking a historical antecedent, the judiciary would most likely look at previous constitutions (from 1824, 1891, 1930, 1937, 1946, or 1967). By analyzing this evolution, the Judiciary would find out the reason why that certain article was inserted into the latest one and, for instance, left out in the previous ones. The Court could also try to look at the framers’ intent: the material intention of the framers and the understanding of the standard and guiding principles of the past legislature, known as the occasio legis.

- Systematical: If the grammatical and historical interpretations do not produce satisfactory results, the court may utilize a systematic interpretation. This is the type of interpretation that seeks to correlate all regulatory provisions of a Constitution – because one can only clarify a certain way of interpretation from knowledge of the whole and not through the construction of separate “strips” and parts. The famous normative pyramid of Hans Kelsen has already been recognized and acknowledged throughout the legal history of the civil law world. Even though he himself never made references to it, the Prague jurist conceived of laws as forming a hierarchical structure (Stufenbau der Rechtsordnung), in which each inferior norm finds its justification or basis in a higher one, until the vertex is reached, that of the paramount norm (Grundnorm), which gives validity and unity to the entire legal order. All the components of the pyramid have to be interpreted and construed along with the fundamental norm (in Brazil, that would be the Constitution), therefore, all legal rules must be read in light of such superior document. However, unlike Germany, the systematic interpretation in Brazil is less about the organizational structure of the norm and more about its social and teleological context. The Supremo Tribunal Federal has repeatedly emphasized the importance of a systematic interpretation:

"The best design is certainly not the grammatical method. The law must be interpreted according to its nature and purpose. The best interpretation is the one that calls into question the purpose of the law – in other words, a teleological interpretation."

In addition to this triad of literal/grammatical, historical and systematic interpretation methods, in an ever-increasing number of laws, there are also special statutory rules of interpretation. Such interpretation instructions are found, for example, in tax law, criminal law, civil law and consumer protection law. Moreover, general design principles, such as the lex posterior rule, the lex specialis rule, and the principle of constitutional interpretation are always to be considered.

- Use of Precedents: The case-based design has also become more and more attractive. For example, the concept of "freedom" should be interpreted along with the case-related interpretations of court decisions that have already dealt with the interpretation of that concept. The main goal of the superior courts is to try to unite all inferior court decisions in a way that a final determination can be achieved with respect to the federal law and its interpretation.

- Scientific Work: Finally, the scientific interpretation is also accepted. Depending on how well recognized Brazilian scholars are in their work/field, their comments on the interpretation of the law may be of great importance to convince decision-makers of their line of thinking.

- Analogy: Partly as an independent source of law, partly as a special means of interpretation, analogy can also be of great use by the Judiciary. Analogy can be utilized to fill an unintended loophole in the law (lacuna) when dealing with similar interests and issues. It provides for equal treatment, as similar situations shall be treated similarly. The analogical method is not permissible at the expense of the accused in criminal law. In tax law, analogy is possible, if at all, at the expense of the defendant, but it shall not in any case result in the requirement of payment of a tax, duty, imposts and excises which have not been previously provided by law.

Relatively easier to be dealt with, at least compared to the U.S. Supreme Court, is the Brazilian version of the well-known issue of whether the Constitution is to be interpreted historically rigidly or in a progressive pace. Most of the judges who deal with constitutional matters prefer an empathic, flexible, adapted to the changing times design to create their work based on an extensive understanding of the laws. However, based on a restrictive understanding of the judicial functions, a right to make decisions is only possible when the constitutional specification is indicated in the standard text or history of the Constitution. Not available in such a condition, then the interpretation of the Constitution, in this view, is the sole responsibility of the elected officials. Any violation, any court "updating" of the Constitution would sabotage the democratic political process, because only a narrow interpretation guarantees hereinafter the separation of powers.

- Comparison to other Constitutions: It often happens that courts interpret the Brazilian constitution and its laws using a comparative method. Overseas-trained judges, like Ricardo Lewandowski and Joaquim Barbosa, are informed in detail about the legal situation in other foreign states and incorporate their experience abroad when interpreting the Constitution. The website of the Supremo Tribunal informed this eloquently in English:

"The Federal Supreme Court usually employs comparative law as a parameter in its decisions, even though it does not play a decisive role in the creation of the Court's jurisprudence. Comparative law doctrine and jurisprudence are mentioned in the vote cast of the Justices of the Court as a means to qualify the debate and to deepen the analyses and arguments developed in the judgments. The results may be observed in well-grounded decisions, with the consequent enhancement of the Court's jurisprudence. "


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