Transformation by Decree? A (Brief) Reflection on the ‘Directive Constitution’ (Constituição Dirigente) in Brazil

Abstract

Coined originally by the great constitutional law scholar José Gomes Canotilho in the aftermath the post-revolutionary Portuguese constitution of 1974, the concept of a constituição dirigente (‘directive constitution’) has found some expression in the Brazilian (re-democratization) constitution of 1988 (CF88), which contains a number of injunctions and mandates aimed at ‘directing’ (primarily) the legislature towards the enactment of a wide-range of economic, administrative, and also civil rights matters. In doing so, the CF88 did not only purport to protect the new democratic system from falling (back) into autocracy but it also entrenched a deeply (social) transformative agenda in the constitutional telos. In the unfolding constitutional reality since the CF88’s entry into force, the courts, and especially the apex court (STF) sought to interpret and concretize these ‘directive’ elements in a continuous ‘dance’ with and around an often recalcitrant legislature and (to a lesser degree) executive. Many elements have been modified or watered down, though some have been upheld and realized, not least on account of a ‘neo-constitutionalist’ turn in Brazilian constitutional doctrine that has led the way for an unprecedented (self-)empowerment of the judiciary vis-à-vis the other branches of government. This has, arguably, transformed the original ‘directive constitution’ into a ‘directive constitutionalism’ led by the courts that has produced ambivalent outcomes.