Brazilian judicial system: recent history and comparative data
| Autor | Wagner Feloniuk |
| Cargo del Autor | Universidade Federal do Rio Grande - Brazil |
| Páginas | 201-224 |
201
EL DERECHO HUMANO A LA DEMOCRACIA Y SU GARANTÍA MEDIANTE LA REGULACIÓN...
BRAZILIAN JUDICIAL SYSTEM:
RECENT HISTORY AND COMPARATIVE DATA
WAGNER FELONIUK
(Universidade Federal do Rio Grande - Brazil)
1. INTRODUCTION
This article presents da ta of the Brazilian Judicial System, star ting from the
Constitution of 1988, w hich restored democracy in Brazil and started a new moment
of judicial protagonism in the country. The research is constructed with an initial
section that shows the main factors that have influenced the system in recent years.
These da ta are compose d of doctrine, th ey present imp ortant elemen ts to the
formation of the actual moment.
In the second part, the w ork is predominantly quantitative. The research is an
effort to unify data that is published sparingly in Brazil an d analyze it in the way
the most comparisons on the field are done, with special emphasis to the method
and structure of Council of Europe - European Commission for the efficiency of justice’s
report. The Brazilian data need an elongated collection, and then, unification with
the adopted method, but the most recent are available and all ow a comparison with
European countries. The objective, then, is to show the total number and the number
per 100 thousand inhabitants of the main elements that form the Judicial System of
the countries, that are number of cases in the system, incoming case s per year ,
judges, prosecutors, public defenders, lawyers and data on legal education. As this
is a comparison ma de i n B razil and access to local data is more di fficult from
outside, a presentation of historical series of these same data will also be made.
About this historical data, a framework can be shown, but there are severa l missing
elements, because they were collected without periodicity or because, in fact, they
were not produced or publicized . In all cases, these data are collected especia lly
since 1988, marking the moment when the new Constitution was in force.
The initial inspiration for the research was an article published more than ten
year s ago1. Tw o North Am erican s cholars made comp arison s betwee n some
countries and, due to it, it was noted that there was no such research in Brazil. There
are detailed reports, such as the Justice in Numbers (J ustiça em Números) of the
National Council of Justice (Conselho Nacional de Justiça - CN J), which covers t he
Judiciary branch, but there are no publications like that on all parts and, mainly,
there is no unification or uniformity of data - each institution publishes, in greater
or lesser detail, only the data a bout itself and according to its main concerns. Internal
discus sions about the si ze and difficul ties of the Brazi lian judicial s ystem are
1J. M. RAMSAYER y E. B. RAMSUS EN, «Comparative Litigation Rates», in Discussion Paper no. 681,
Cambridge, 2010, pp. 1-43.
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WAGNER FELONIUK
common, so having comparative data and historical series can contribute to better
understand the country. Brazil has undergon e profound changes in the last thir ty
years in this area, there is much to be learned by looking at other countries.
2. THE BRAZILIAN JUDICIAL SYSTEM
2.1. Brief historical background
Brazil follows a European tradition in organizing its courts and is similar to
systems found in Europe and the Americas. It is a Civil Law system derived from
Roman Law, its initial bas is was the Portuguese ordinances after the colonization,
especially important was the Philippines Ordinances of 1603, in force in Brazil for
more than two centuries2. After the colonial period, which already had man y origi-
nal legislation for its organization, it was significantly influenced by the thought of
the 18th century3, especially of European origin, which arrived in Brazil due to the
diffusion of liberal auth ors (Voltaire, Montesquieu, Smith , Lo cke, Constant etc),
Portuguese and Spanish revolutions, and the Brazilian Independence, in the late
18th and early 19th centuries . Thi s ca n be seen in the laws during the colon ial
period and in the first Brazilian Constitution, the Imperial Constitution of 1824,
which would remain in force until 1891.
At the end of the 19th century, the second Brazilian Constitution, the first of
the republican period, of 1891 , li ke th ose of so man y na tions, was significantly
influenced by incorporating the idea of Constitutional Court in a North American
style and creating the possibility of judges to verify the constitutionality of laws in
conflict with the Constitution4. This influence of the United States can also be felt in
the idea of having a federa l branch, what was called the Duality of Justice at the
time. However, the Federal Justice created and the rest of the judiciary organization
could no longer be seen as the result of strong external influence except in the
creation of the Supreme Court, the ori gin o f the current Supreme Federal Court
(Supremo Tribunal Federal - STF). From the imperial period onwards, the Brazilian
judicial organization begun to be mainly made due to the needs of Brazilian society.
The use or not of foreig n legislation is due to advan ces in ideas coming from
different areas of law, there is no possibility of establishing an uniformity of time
or are a that rec eives inf luence, a nd it has co me from seve ral coun tries. Th e
developme nt i s m ainly local, the use of foreig n i deas is very important, but it
needs to be studied in each episode.
Later, especially from 193 2 onwards, the system would have incorpora tions
coming especially from the German consti tutional system and its Constitutional
Court, that is able to do constitutional control of laws affecting the entir e le gal
2A framework of the colonial judicial organization was presented in J. LOPES, O Direito na História:
lições introdutórias, São Paulo, 2011.
3The use of the term «thought» refers to the political thought of limiting the Government actions by
the Rule of Law, having a Bill of Rights, separation of powers - the liberal thinking of the period.
The transition f rom the colonial judiciary to this new moment was studied in works by Arno
Wehling, see A. WEHLING y M . J. WEHLING, «Justiça Ordinária e Justiça Administrativa no
Antigo Regime», in Revista do Instituto Histórico e Geographico Brazileiro , 2011, pp. 177-200.
4Rui Barbosa was the most prominent jurist of the period in Brazil, one of the responsible for drafting
the Constitution of 1891 and a defender of North American political ideas and legal institutions. On
his ideas for the Constitution, see The Constitution of 1891. R. BARBOSA, Obras Completas de Rui
Barbosa - Discursos Parlamentares, Rio de Janeiro, 1946.
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