The Rule of Law in Brazil

Original contribution by Ana Paula Barbosa-Fohrmann, PhD and Post-Doctorate from theUniversity the University of Heidelberg. Master in Public Law and Bachelor of Laws from the State University of Rio de Janeiro (UERJ), visiting Lecturer at UERJ, and Aline da Cruz de Moura, Student at the Law School of the Federal Fluminense University (UFF).

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Thus, despite having been influenced by the French Constitution of 1791 with respect to fundamental rights, the first constitution of Brazil was characterized by a centralizing and authoritarian political power exercised by an absolutist monarch. Accordingly, the liberal ideology, that was formally introduced into that constitution, remained restricted to matters relating to fundamental rights. There is no doubt that the prediction of such rights has influenced the bills of rights of the following constitutions.

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Although the Constitution of 1967 contains a chapter on fundamental rights and guarantees throughout the dictatorship, rules were created, called “institutional acts”, which, besides providing for the election process and the organization of powers, suspended fundamental rights under the constitution. All these institutional acts were excluded from judicial review. For instance, the suspension of political rights and habeas corpus, and the change of electoral process occurred according to such acts.

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Brazil is thus a social State based on the rule of law and legitimized by the people, who exercises exercise democratic power.

4. Assessment

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With regard to popular participation in the exercise of power, the Constitutions of 1934 and 1946 only tended to a democratic system, since the vote was not in fact universal.

The Constitution of 1988, currently in force, reaffirmed the principle of popular sovereignty inherent to a democratic state. In contrast to the democratic constitutions mentioned above, it is absolutely clear about the principles and rights comprised by the rule of law.

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