Brazilian Constitution Research Articles

DESAFIOS JURÍDICOS NA REGULAMENTAÇÃO DAS CRIPTOMOEDAS SOB A CONSTITUIÇÃO BRASILEIRA

The research addresses the "Legal Challenges in the Regulation of Cryptocurrencies under the Brazilian Constitution", with the objective of analyzing the legal difficulties related to the regulation of cryptocurrencies in the country. In addition, it seeks to investigate how these digital currencies align with constitutional principles, examine their impact on the Brazilian economy and the security of the business environment, and propose recommendations for adequate regulation. The research problem can be summarized in the following question: In what way does the regulation of cryptocurrencies, in light of the Brazilian Constitution, influence the individual guarantees of citizens and the legal security of the system? The regulation of cryptocurrencies in Brazil presents significant challenges in the legal and constitutional context. Although these virtual currencies play a growing role in the global economy, their decentralized nature, lack of state control, and volatility generate uncertainties that directly affect the Brazilian legal system. The research uses a bibliographical approach, based on academic studies, doctrines, and legislation, aiming to offer a critical view on the subject and contribute to the legal debate around cryptocurrencies in the national scenario.

The Surprising Survival of Constitutionalism in the Caudillo Republic of Rio Grande do Sul, Brazil, 1836–1845

Abstract The caudillo strongman remains emblematic of Latin American authoritarianism, but scholarship has seldom reflected on the semantic shifts that this concept suffered over time and its implications for the history of political thought. Numerous political experiments have been marginalized from historical and state-building narratives as the irrelevant work of caudillos, such as the short-lived Rio Grandense Republic in southern Brazil (1836–45). By explaining the Rio Grandense caudillos’ engagement with constitutionalism, this article argues that ‘caudillo’ can be a useful category of analysis if historically contextualized. The article thus reconsiders the history of political thought and state-building in Latin America and beyond in the age of revolutions, suggesting the serious need to scrutinize ‘failed’ states and revolutions. This argument is pursued in three steps. First, the article describes shifting understandings and usages of ‘caudillo’ in nineteenth-century Brazil and neighbouring River Plate states. Second, it analyses the Rio Grandense Republic’s 1842–3 constituent assembly and the novel electoral procedures it employed. Third, it examines the never-promulgated constitutional draft produced by its assemblymen. This constitutional draft is then compared to contemporary River Plate and Brazilian constitutions and its rejection is explained through the assemblymen’s divergent understandings of constitutionalism and democracy.

A MERCANTILIZAÇÃO NO ENSINO E SUAS CONSEQUÊNCIAS

Education presents itself as a central pillar for citizens’ training processes, whether within the family, at work, in institutions or in society. The Universal Declaration of Human Rights and the Brazilian Constitution of 1988 guarantee education as an assured right that must be offered to the entire population. However, together with the growth in access to education for the various social classes, there is also a breakdown of education due to the entry of private institutions. This study aims to demonstrate the evolution and negative influences from the private sectors in Brazilian education, training less qualified professionals, thus harming the whole of society.

Repensando o repensamento do “Princípio da Supremacia do Interesse Público sobre o Particular”: uma reabertura do debate, no plano da pré-compreensão jurídica

It is proposed to investigate the existence, in Brazilian Constitution, of a notion of primacy of public over private interests. At the current stage of dogmatics, two ideas of supremacy are confused: of public over private interests, and of collective over individual interests. Qualitative bibliographic research was carried out, which developed from the criticism directed by Humberto Ávila to the supremacy of public interest’s dogmatics. Method was compilatory and critical of the so-called “deconstructive” and reactionary positions. It was identified that the processes of semantization of public interest as collective interest, and of creation of an axiom of absolute supremacy — not originally sustained — serve to provide an easy solution to a problem that did not exist. It is also unveiled that the reasons for “deconstructing” the (supposed) axiom of the absolute supremacy of the public over private interests serve as a starting point for the discussion on the primacy of collective over individual interests. As a result, juridical pre-comprehensions, especially about state and constitution theories, have a decisive influence on the relationship of priority in the satisfaction of interests, even for the dogmatic current that maintains that the public interest can only be discovered by means of balancing.

Direitos das trabalhadoras gestantes, adotantes e lactantes no Brasil: legislação aplicada

Due to its complexity, the Brazilian legislation requires continuous study from legal practitioners to ensure proper application. The protective rules for maternity, including pregnancy, adoption, and lactation have gradually been increased over the years, in compliance with Article 7 of the Brazilian Constitution, which encourages the emergence of new social rights. These rights can be stratified into those that arise with pregnancy, those that develop during the course of gestation, and those that protect the child at the beginning of its life outside the womb. Additionally, there are rights pertinent to new situations or aimed at increasing the father’s participation during this initial phase.

RELATIVITY OR NOT OF THE CONSTITUTIONAL RIGHT TO SILENCE

This Article brings out specific and deepened approach to the right to silence, examining the hypothesis according to which the aforementioned constitutional and fundamental right would be relative or not. With the aim of scrutinizing the right to silence, based on an investigative stimulus provoked by a concrete situation resulting from a court decision, the present study starts from the analysis of the idea of ​​complementarity and interdisciplinarity between Public Law and Private Law, as well as among varied branches of law. This is because the right to silence itself, better explored in the second chapter, depending on interpretations and theoretical developments, can gravitate and transit, sometimes more, sometimes less, along with Public and Private Laws. And because the right to silence is, at the same time, another right to freedom found in the 1988 Brazilian Constitution, its specific research in this article is preceded by directed evaluation of other fundamental freedoms, such as the expression of thought, among others developed in the text. Finally, considering the analytical-deductive methodology used, supported by theories, legislation, legal norms and current concrete decisional examples, this research revisits classical themes, but strengthens and innovates them with a peculiar and specific epistemological and hermeneutic exercise.

Dismantling and Reconstruction of Public Policies in Brazil: From Bolsonaro’s Destruction to the Possibilities of Union to Rebuild

This article discusses the Brazilian political situation with a focus on the dismantling of public policy that occurred during the government of President Jair Bolsonaro between 2019 and 2022. It also focuses on the possibility that emerged with the election of President Lula da Silva in October 2022 of rebuilding politics and the Brazilian state. The study seeks to demonstrate how the Brazilian state was dismantled, jeopardizing the provision of public policies that guarantee the social, political, and human rights enshrined in the 1988 Brazilian Constitution.

THE PROS AND CONS OF ARTICLE 207 OF THE 1988 FEDERAL CONSTITUTION OF BRAZIL

Purpose: This article focuses on Article 207 of the 1988 Brazilian Constitution. It then discusses the pros and cons of this article, which gives full rights to Higher Education Institutions (HEIs) in relation to their teaching and administrative autonomy. The social problem is as follows: Do HEIs (Higher Education Institutions) violate the law or not, as they are protected by Article 207 of the 1988 Brazilian Constitution? The aim of this study is to show how HEIs use Article 207 (BRAZIL, 1988) in their selection processes for undergraduate and postgraduate courses in Brazil.
 Method: This investigation used the Experience Report as its method and the qualitative approach as its approach.
 Results and Discussion: The results of this study show that HEIs do violate the law. Unfortunately, there seems to be no supervision by public bodies, except when the MEC (Ministry of Education) or another recognized body visits these institutions to qualify or disqualify their courses at national level and even internationally (institutions other than the MEC). On these occasions, unfortunately, many camouflages are made by these HEIs. Reading this article, it becomes clear that the university autonomy of Article 207 of the 1988 Federal Constitution (BRAZIL, 1988) does not in fact guarantee democracy within the HEIs, especially when it comes to entering and remaining as a student, teacher and/or employee/servant, especially in public HEIs.
 Implications of the Research: This experience report explores the possibility of re-evaluating Article 207 of the Brazilian Constitution of 1988, to the extent that the autonomy guaranteed to Higher Education Institutions in Brazil is more effective, linked to constant inspections by public authorities without prior warning. Thus, it is understood that, although "enslaved" to a higher order represented by the Brazilian government and the legislation in force in Brazil, Brazilian universities will indeed be secular and for everyone.
 Originality/Value: This research and article, although short, raises for discussion a crucial point for guaranteeing democracy in access to higher education and postgraduate studies in Brazil, which is little debated. There is a lot of talk about autonomy within Brazilian universities today. However, there is little questioning of this autonomy and how harmful and lethal it can be to democracy within them.

Brazilian primary dental care in a universal health system: Challenges for training and practice

ObjectivesTo report the challenges for training and practice for the Brazilian primary dental care in a universal health system. MethodsHealth, education and protection rights against poverty are guaranteed by the 1988 Brazilian Constitution and public health in Brazil is provided by the Unified Health System (SUS), one of the largest public health systems in the world. According to SUS, every Brazilian citizen has the right to free primary oral health care as secondary and tertiary care, offering a unique opportunity to integrate oral care within general health care. ResultsThe Brazilian undergraduate Dental curriculum was updated in 2021 aiming to graduate general practitioners with a major in comprehensive health care in primary health care, integrated with public and general health. This curriculum update requires at least 20% of the academic hours to be exercised outside the university walls (extramural or community work), preferably within the SUS. ConclusionsConsidering the World Health Organization (WHO) agenda, Brazil needs to advance the innovative oral health workforce, the integration of oral health into primary care, the population access to essential dental medicines and optimal fluorides for caries control. Clinical significanceIt is necessary political action and the engagement of multiple stakeholders, mainly from the health and education sectors, to improve primary health care

Multidisciplinary aspects of the notion of efficiency: a discussion under applicability in the judiciary

This article aimed to discuss the multidisciplinary aspects of the notion of efficiency in relation to the decision maker's actions when aiming to meet speed, transparency, planning and economy. The principle of efficiency was included in the Brazilian Constitution in art. 37 by Constitutional Amendment nº 19, of 06/04/1998, defining the way public administration operates in its spheres of power to optimize management and achieve better results. This is qualitative research, with a descriptive nature, in which the interpretation and explanation of the theme and its social relations with aspects of reality prevail. As for technical procedures, it is characterized as bibliographic and documentary, in which it made use of elaborate material (books, scientific articles) and various materials (legislation, reports, manuals and others). It was found that the notion of efficiency has always been, in general, approached as the cost-benefit relationship observing the combination between available resources and their results (products and/or services). In Brazil, the applicability of efficiency in public management has gained emphasis over the years, both due to the evolution of legislation and the improvement of the way public entities are managed. In the judiciary, speed is more associated with procedural rites (time variable); transparency, good examples are the Justice in Numbers Report and the Socio-Environmental Report; planning, the National Council of Justice is responsible for improving work, control and administrative and procedural transparency; economy, the notion of performance with quality, achieving the best possible result. The concept of eco-efficiency has gained strength in recent years due to the gap in the development and implementation of efficiency as sustainability strategies with the premise of combining economic and environmental efficiencies.

The sustainability in the 21st century and its shelter in the Brazilian Constitution of 1988

The challenges of modernity, especially those resulting from globalization and the unlimited exploitation of natural resources, which have resulted in a serious ecological crisis, require new values, of which sustainability stands out. The general objective of this work is to analyze the importance and influence of sustainability in facing the consequences of globalization and its influences on law and the conformation of contemporary States. In turn, the specific objectives will be centered on the exposition of the current stage of globalization, the emergence of sustainability as a new paradigm that recasts and guides the State and the law, and finally, the conformation that this new paradigm has received in the context of the Federal Constitution of 1988. As for the methodology, the inductive method was used in the research phase, and the Cartesian method in the data treatment phase.

Sustainable Development Goals and Taxation in the Brazilian Constitution

Sustainable Development Goals and Taxation in the Brazilian Constitution

Access to Justice and Due Process as Superprinciples of Procedure Law in the Brazilian Constitution of 1988

Access to Justice and Due Process as Superprinciples of Procedure Law in the Brazilian Constitution of 1988

The Potential and Challenges of A Unified Health System

The Covid-19 pandemic has claimed more than 700,000 victims in Brazil since 2020, putting the world’s largest public health system to the test. The Brazilian Unified Health System (SUS) has provided medicines, beds, rapid tests and laboratory surveillance free of charge, playing a significant role in tackling this health crisis. The current Brazilian Constitution, promulgated in 1988 and also known as the Citizen Constitution, for having extended essential rights to society, established a dynamic and complex health system, the Unified Health System (SUS).

Participatory Democracy in Florianópolis: The Experience of Participatory Budgeting Based on Law no. 14.061/2018

Objective: Analyze participatory democracy and highlight the municipality, as a fruitful space for the realization of citizenship, through popular participation in public management, focusing on the institute of participatory budgeting in decision-making and the experience of Florianópolis, considering the five years of validity of the Municipal law 14.061/2018. Theoretical framework: Supported by the theoretical legacy of Paulo Bonavides, the research seeks to stimulate critical reflection on participatory democracy in Brazilian constitutionalism and the exercise of citizenship at the local level. Starting from the understanding that the Constitution and the Democratic Rule of Law in the Brazilian federative model find a privileged space for action in the municipality and, therefore, are also carried out through local constitutional policies, the research considers the need to establish instruments that enable the implementation of participatory democracy, especially when it comes to cities and citizenship such as social inclusion, political participation, and community integration. In this sense, participatory budgeting is presented as an effective means of stimulating popular participation at the municipal level. Method: Contextualized within the disciplinary scope of Constitutional Law, from the methodological perspective of the study of Law as constitutional policy, this article is the result of bibliographical and document research, with the application of the hypothetical-deductive method, also involving the collection of data relating to the budget participatory in the Capital of Santa Catarina and the analysis of its correlation with popular participation. Results and conclusion: The standardization of the participatory budget gave greater legitimacy and, in fact, stimulated popular participation. Greater community integration was also noted, observing that the participatory budget is a useful instrument for optimizing the basic precepts of participatory democracy and the Democratic Rule of Law. Research implications: By analyzing the experience of the Capital of Santa Catarina, it is expected to contribute significantly to the visualization of the potentialities and weaknesses of using the participatory budgeting institute in Brazilian municipalities, as an expression of participatory democracy and active citizenship at the local level. Originality/value: The research is part of the study of practices for the consolidation of the Democratic State in Brazilian federalism and participatory democracy at the municipal level. The study is relevant not only for understanding participatory budgeting in the municipality of Florianópolis, as it provides support for reflecting on local democracy in Brazilian municipalities, as the debate regarding popular legitimacy in administrative decision-making has been growing.

Análise retórica do Processo Constituinte Brasileiro de 1987/1988: O relato vencedor da Constituição Cidadã

This article intends to carry out a rhetorical analysis of the construction of the term “Citizen Constitution”. Used as an epithet for the Constitution of Brazil of 1988, the expression was coined with the intention of overcoming the dictatorial regime that it previously watched, consolidating itself in this way as a winning story. The general objective of the work is to understand the formation of this narrative, considering that the most varied groups that participated in the 1987/1988 constituent process exerted pressure on each other and on the constituent legislators, in order to approve the constitutional text that most interested them. The methodology used is rhetoric that, through a tripartite view of material, strategic and analytical, uses the dissoi-logoi, or exposition of contrary arguments, to, in the end, carry out an analysis that is intended to be equidistant. To this end, the rhetorical conception, adopted as the theoretical and methodological basis of this work, is opposed to the problem of traditional legal hermeneutics and its search for the correct answers. As a central problem, this work faces the question: is it possible to extract a single narrative from the Constitution? It is concluded that, although “citizen” is an expression that permeates the imagination of Brazilian constitutionalism, influencing its interpreters, the Constitution has limits regarding the realization of citizenship.

The Pandemic’s Golden Touch: (Neo)Extractivism, Coloniality, and Necropolitics on Brazil’s Indigenous Territories

AbstractMining has been at the forefront of coloniality for hundreds of years in Brazil, representing one of the main threats to the integrity and health of Indigenous lands. The 1988 Brazilian Constitution recognized Indigenous peoples’ rights to the lands they occupy, and their natural resources, according to their traditions, uses, beliefs, and practices. Constitutional provisions, however, have not impeded governments and lawmakers from actively enabling extractive activities in Indigenous territories and their surroundings. Recently, the Bolsonaro government proposed a package of laws and policies to legalize mineral exploitation on Indigenous lands, using the economic uncertainties generated by the COVID-19 pandemic as a justification. However, this action must be explained through the paradigms (or philosophical frameworks) of the extractive economy and coloniality of power, operationalized by necropolitics. The article’s main argument is that the Constitution requires the government to engage in practices of decoloniality that express Indigenous legal traditions. Even though a newly elected government has been revoking many of Bolsonaro’s proposals, the paradigms of the extractive economy and the coloniality of power have a profound, structural influence on the Brazilian legal and political systems and must be challenged by a revival of decolonial ways of thinking and acting.

THE YANOMAMI IN BRAZIL

This study evaluates the legal implications of the traditional occupation of land by the Yanomami people in Brazil, beginning from the construction of the highway BR-210 (Rodovia Perimetral Norte) in 1973, which corresponded to a large influx of non-indigenous people and several land conflicts. We seek to show—by analyzing the Brazilian Constitutions after 1967, the infraconstitutional law upheld by the constitution, the international treaties, and the inter-American jurisprudence—that the legal order in Brazil provides for the possession of indigenous lands, the usufruct of their natural resources, land demarcation, and the removal of intruders. However, the State systematically violates these rights, occasionally causing humanitarian crises. This serious phenomenon occurred twice. During the Brazilian dictatorship (specially from 1975 to 1990) and the Brazilian democracy crisis (beginning in 2014). Both mobilized the bodies of the inter-American human rights system. Although Indigenous rights are well developed in Brazil, their effectiveness remains a challenge due to the political opposition of certain social groups, culminating in periods of greater democratic fragility, humanitarian crises analyzed by the Inter-American Commission on Human Rights, and by the Inter-American Court of Human Rights, which has jurisdiction to respond to Brazil.

Favela’s Individual and Collective Access to Justice under the Brazilian Democratic Constitution: An Overview of 30 Years of Insurgent Peripheral Litigation

This paper discusses the democratization of the judiciary in Brazil considering its access for people who live in favelas. We used a temporal and spatial analysis of the civil decisions rendered by the Court of Appeals of the State of Rio de Janeiro (TJRJ). The analysis takes two perspectives: (1) the access to justice – whether individually or collectively; and (2) the response of judges to the claims filed. The results suggest a connection between: (1) the increasing access by favela dwellers to the judiciary and the improvement of social development levels; (2) low incidence of collective claims and negligence by judges regarding this kind of claim; (3) lack of consistency between the precedents and the favela reality and social changes over the past few years; and how these findings (4) challenged some academic common-sense beliefs on "access to justice" in Brazil.

Rights-Based Climate Litigation in Brazil: An Assessment of Constitutional Cases Before the Brazilian Supreme Court

Abstract This article presents a systematic analysis of climate litigation in the Brazilian Supreme Court. It argues that climate litigation in Brazil is centred on the protection of human rights and the court is ready (and eager) to draw a closer connection between climate and human rights. The climate litigation movement in Brazil follows in the wake of more than 40 years of a rich environmental legal framework and jurisprudence. This long trajectory includes adopting a chapter in the 1988 Brazilian Constitution dedicated to the right to an ecologically balanced environment. The Constitution determines this is a fundamental human right, encompassing the present and future generations. Building on this context, recent climate litigation cases question how climate stability fits within this constitutional framework. As the country’s constitutional tribunal, the Supreme Court recently received important climate cases addressing Brazil’s climate policy implementation. This article proceeds in three parts. First, the article contextualizes the climate litigation movement in Brazil’s broader environmental legal framework. Second, the article describes the Supreme Court climate docket of concentrated control cases. It focuses on the human right to an ecologically balanced environment and its connections with other constitutionally protected human rights. Third, the article examines the cases’ judicial reasoning, considering how the Supreme Court addressed climate change in the decisions (interlocutory or on the merits) available thus far. The ultimate goal of this article is to deepen the understanding of how the Supreme Court approaches climate as a human right through the methodical examination of the court’s pronouncements.