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The Constitution of Brazil

A Contextual Analysis

By: Virgílio Afonso da Silva
Media of The Constitution of Brazil
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Published: 19-12-2019
Format: Paperback
Edition: 1st
Extent: 296
ISBN: 9781509935079
Imprint: Hart Publishing
Series: Constitutional Systems of the World
Dimensions: 216 x 138 mm
RRP: £30.00
Online price : £27.00
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About The Constitution of Brazil

This book offers an original and comprehensive analysis of Brazilian constitutional law and shows how the 1988 Constitution has been a cornerstone in Brazil's struggle to achieve institutional stability and promote the enforcement of fundamental rights. In the realm of rights, although much has been done to decrease the gap between constitutional text and constitutional practice, several types of inequalities still affect and sometimes impair the enforcement of the ambitious bill of rights laid down by the Brazilian Constitution. Within the organisation of powers, the book not only describes how its legislative, executive and judicial functions are organised, but above all else, it analyses how a politically fragmented National Congress, a powerful President and an activist Supreme Court engage with each other in ways that one could hardly grasp by reading the constitutional text without contextual analysis. Similarly, the book also shows how the three-tiered federation established in 1988 has undergone a process of centralisation led not only by the central government but also by the Brazilian Supreme Court. In addition to chapters on organisation of powers, fundamental rights, federalism, and the legislative process, the book also presents an overview of Brazilian constitutionalism with a special focus on the transition from authoritarianism to democracy, which led to the enactment of the 1988 Constitution. In the conclusion, the author argues that part of the Constitution's transformative potential remains to be realised. Enforcing the Constitution, not changing it, has been the real challenge in the last three decades and will continue to be for many years to come.

Table Of Contents

I. An Overview of the 1988 Constitution
II. Fundamental Rights
III. Presidential System
IV. Federalism
V. A Note on Translations and References
1. A Long and Winding Road to the 1988 Constitution
I. An Overview of Brazilian Political Organisation from 1500 until 1822
II. Brazilian Constitutions Before 1988
III. The Constitution-Making Process of 1987–88
IV. The Legitimacy of the 1988 Constitution
Further Reading
2. The Legislature: Bicameralism, Multipartism, and Ongoing Crisis
I. Composition, Seat, and Basic Organisation
II. Electoral System
III. Exclusive Powers of the Federal Senate
IV. Parliamentary Immunities
V. Removal from Office
VI. Investigative Powers
VII. Financial Control and the Federal Audit Court
VIII. Ongoing Legitimacy Crisis (But Still Powerful)
Further Reading
3. The Executive: A Strong President and Coalitional Presidentialism
I. The Election of the President of the Republic
II. Replacement, Succession, Impediments and Vacancy of Office
III. A Strong President Before a Weak Congress?
IV. Brazil's Coalitional Presidentialism
V. Attempts to Change the Brazilian Presidential System
VI. Presidentialism Under Attack
VII. Treaty-Making Power
VIII. Regulatory Powers
IX. The Vice-President
X. The Ministers of State
XI. Impeachment and Removal from Office
XII. Emergency Powers
XIII. Public Administration and Regulatory Agencies
XIV. Armed Forces
Further Reading
4. The Judiciary: Independence, Activism, and Publicity
I. The Brazilian Justice System
II. The Brazilian Supreme Court (STF)
III. The Brazilian System of Judicial Review of Legislation
IV. Concrete Judicial Review of Legislation
V. Abstract Constitutional Review of Legislation
VI. An Activist Court?
VII. Functions Essential to Justice
Further Reading
5. Rights: Enforcing Civil Liberties in an Unequal Society
I. The Bill of Rights of the 1988 Constitution
II. Holders of Fundamental Rights
III. Horizontal Effects of Fundamental Rights
IV. Right to Life
V. Equality
VI. Freedom of Expression
VII. Freedom of the Press
VIII. Freedom of Information
IX. Right to Privacy
X. Freedom of Assembly
XI. Secularism and Freedom of Religion
XII. Property Rights
XIII. Access to Courts and Due Process
XIV. Nationality
XV. Political Rights
XVI. Political Parties
XVII. Treaties on Human Rights
XVIII. The Inter-American Human Rights System
XIX. Constitutional Remedies
Further Reading
6. Beyond Liberal Constitutionalism: Social Rights and the Social and Economic Orders
I. Social Rights and Social Order
II. Socioeconomic Rights in Courts
III. The Social Order Beyond Social Rights: The Environment and Indigenous Peoples
IV. The Economic Order
Further Reading
7. Federalism: Cooperation and Increasing Centralisation
I. Centralisation and Decentralisation until 1889
II. Allocation of Powers under the 1988 Constitution
III. Legislative Powers
IV. Policy Powers
V. The States in the Brazilian Federalism
VI. A Three-Tiered Federation: Municipalities
VII. The Federal District
VIII. Federal Territories
IX. Federal Intervention
X. The Federal Senate
Further Reading
8. Law-Making Process and Constitutional Reform
I. Ordinary Legislation
II. Provisional Decrees
III. Complementary Legislation
IV. Constitutional Reform
Further Reading
Conclusion: Change to Overcome


“While clearly written for an international audience, Da Silva's contribution to this series is also useful for law students and professors in his native Brazil. The book presents the country's constitutional system in a comprehensive yet easy to read way, while also breaking with the formalist and doctrinal traditions that dominate Brazilian legal pedagogy. Da Silva combines internal and external perspectives to his analysis of constitutional norms and case law, charting a nuanced map to guide both beginners and specialists on the subject.” –  Natalia Pires de Vasconcelos, Public Law

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