Brazzil

The judicial branch does not effectively interpet and rule on existing laws, consequently it always ends up in pizza. I don't see how a new constitution will reform this problem in which an "independent judiciary" in the past often seems to act solely on the basis of maintaining its own priveledged self-interest.

You have even more laws (creating unecessary bureaucracy costs) that most countries.
The problem is that they are not applied.
And the elite minorities are accomplices of those supposed to apply the laws, which means that they have no risk to go against the law.
With no risk, or at best with low risk, this explains the thousands of unpunished crimes, tax evasion and corruptions to the roots by your politicians from all ideologies.
Corruption being these days at the highest rate ever, it is strange that you still accept Lula and his gang of ministers.
Assuming Lula would not be president but be in the opposition, no doubt he would be the first to ask for the resignation or impeachment of the President, in view of the corruption scandals you have now.

Therefore why is this acceptable to him NOW ? And he continues to take publicly defense of his friends involved.

If he was not involved, as he says, he cannot say there was no vote buying.
Because how could he know something he was, apparently, not involved ?????

Quite curious !

Brazil has many laws, but many contradict one another, others are too utopic, and others simply don't take hold.

Brazil has indeed many laws, but this country certainly does not have the rule of law.

"A critical analysis of what is going on in Brazil reveals the prevalence of extra-legal factors that prevent Brazilians from establishing an authentic democracy under the rule of law."

Rule of law is a therm used in commonwealth legal systems, such as English or American law, and as such has nothing to do with Brazil, whose legal sustem is based on the 'Code Napoleon' .

This said, the 'rule of law' does not imply the 'justness' of the laws, but merely their existence as a prerequisite of democracy, but not as a prerequisite of 'fair state' . One can consider that the rule of law exists whenever there is a clear division between the Legislative, Executive and Judicial branches.

"Rather, the original document has constantly been altered on account of numerous amendments following the above-mentioned proceeding."

In Napoleonic legal systems, the constitution is not considered a rigid document, which, imho is something that is clearly wrong in the American legal system with it's ancient, obscure and outdated constitution. A constitution as the most basic law of a nation needs to change over time. Most European constitutions (except of course the english constitution, which is not even written) have changed many times over the last 20 years. The built in complications of changeing the constitution is to safegaurd the constitution against arbitrary changes.

"The 1988 Constitution is full of trivial details and unaffordable promises."
It is clear to me that the author does not have any knowledge of cosntitutional law, other than the 'american' constitution, and considers it the only correct form of a constitution. Maybe he should study the belgian, dutch, french, spanish, portuguese, italian, greek, german, danis etc. constitutions to get an idea of how things work in other democracys, so he may have an idea of the historic backgrounds to the brazilian constitution.

In Napoleonic legal system, the constitution provides the bounds within which governments may operate and it provides the basic structure of the government and the nation. The Brazilian constitution in this respect is not much different from the constitution of many european and african and asian countries, and is not at all a bad document.

It is clear to me that the above poster does not have any knowledge of human nature, as he does not seem to know that humans in general don't give a damn if their system is a napoleonic system or a commonwealth system. They are just worried about living in a system that really protects them and works, which Brazil doesn't have. Mind about results.

The above poster also seems not to know that Brazil has a much more strict legal system, and that the ease of creating new laws and constitution ammendments gives an enormous power to politicians, who are then encouraged to create new laws and new ammendments that severely restrain our freedom, as is happening in Brazil.

Also, the above poster does not seem to know that the american constitution has received several ammendments and even so they have kept their freedom.

The above poster also looks not to know that napoleonic empire is history and was not exactly, erm... so democratic.

Last but not least, Brazil follows the roman tradition, and napoleonic code is just a small influence, not just to Brazil but to South American countries in general as well, but that does not imply that brazilian legal system is based on napoleon code. It's based on roman legal system, which is history as well.

P.S.: Rule of law is used as a concept to say a state has not fallen to anarchy or tiranny, and that government may only decide based upon the law. The concept appeared first in commonwealth state, perhaps because democracy had its birth in those states, and became a core concept for western democracies.

Human natur and law are two very different issues. Law being reason without emotion. Again, rule of law does not imply fairness, law in general does not imply fairness.

The fact that we live in a completely disequal and unfair state does not mean there is no rule of law, it just means that the basic principle that all are equal for the law has been stretched somewhat into 'all are equal for the law, but some are more eqaul than others'.

What is missing in the Brazilian constitution is a mechanism of delegation clearly stating who what where and when. That might stop brazil from being ruled by MP's. What is wrong is not the number of laws being created but a system by which laws cannot be adopted which are clearly agianst the constitution, such as lula's proposal to create a law restricting the freedom of press.

The american constitution does not guarantee any freedoms. Many of the proponents and of the oposition, afraid that the constitution would open the way to tyranny demanded for the bill of rights. It is this bill of rights, created several years later, that guarantee the people their freedoms. The constitution itself being a document describing the form of government and the rights of the government, but no describing any individual freedoms. The bill of rights are actually the 1st 10 amendments to the consitution. Maybe it's the simplicity of the document that made it whitstand time, but still it's no guarantee agianst corruption (abundant in the US as well), it's neither a guarantee against electoral fraud (Florida Recounts) nor does it guard against a president not elected by popolar vote.
As to the freedoms guaranteed by the bill of rights, this marvelous constitution is stepped upon by congress and the current president by way of the infamous 'Patriot Act' which allows illegal search and seizure, prison without bail. Stints of 'less freedom' have been common in the US. Going back to the 50's it where the McCarthy hearings.

The Corpus Lurus Civilis adopted by the roman empire by Justinius, actually a description of existing oral law, was not the product of a very democratic society either. Canonical law may be argued to have been an extension or adoption of roman law was also not the product of a very 'democratic bunch'. Commonwealth law finds its roots in the British empire which I might say has not been all that democratic throughout history either. The hous of commons becoming the major force in British government well after the US constitution (even though it existed since the model parlaiment of 1295 under Edward 1)

The napoleonic code is the most recent influence in most legal systems, which is the reason I mentioned it. The modern 'rule of law' is baced on Dicey's 9 principals, one of which being the 'common law methodology'.

The fact that in my home country (the netherlands) the 'rule of law' is never mentioned, thought in relation to the national political and governmental structure or even considered in any national context, but, imho, corectly considered a legal principle part of 'common law systems' thus makes that, accoridng you your last comment, the netherlands must have fallen to anarchy or tirrany.

PS. Rule of Law is a concept first mentioned by Aristotole some 2000 years ago: "The rule of law is better than that of any individual."

The correlating for the rule of law in the Portuguese language is ‘Estado de Direito’.

The phrase Estado de Direito, or ‘state under the rule of law’, comes from the German ‘Rechtsstaat’. The expression Rechtstaat was conceived by Hanoverian scholars who were deeply influenced by the Anglo-American (and liberal) tradition of the rule of law. The creator of this expression, von Mohl, was an specialism in American constituional law.

The German 'fathers' of the Rechtsstaat defined this expression in terms of a legal system in which laws must protect individual rights against governmental arbitrariness.

Estado de Direito therefore involves the legal protection of freedoms which are are deemed as inseparable from the liberal tradition of the rule of law, as it was developed in countries like England and the United States.

As well as the rule of law, the concept of Estado de Direito declares that the state does not have “the right to destroy, enslave, or designedly to impoverish the subjects”. In fact, the Estado de Direito imples a meta-legal postulation of personal freedom, as “the true and only province of the rule of law”.

The argument that law has nothing to do with law would be fully endorsed by Hitler, Stalin, and other tyrants. It is based on a dangerous legal positivism which conceives law is everything the political ruler says it is.

This, however, is certainly not associated with the rights-based tradition of the rule of law in the Western world. This tradition subjects the state to a 'higher law', be it a written constitution or just principles of natural law.

In either way, this higher law must effectively protect individuals from abuses of governmental power. This law shall not be easily modified by the government, and must either directly or indirectly provide the protection of basic rights and freedoms for all individuals.

I meant the argument that law has nothing to do with human nature

I would like to invite the dutch guy who defended brazilian legal system to come live here in Brazil. I'm sure he would love the "napoleon code" and the great freedom it provides behind the bars of his personal urban fortress afraid of those people who are not, well, so happy with the great conditions that the righteous brazilian government provides them.

The comments of this Dutch guy were indeed very deplorable.

I am starting to worry about the fate of the rule of law in Netherlands.

I just hope this guy is is just part of a fringe minority in his country.

YEp, You guys will succeed on 15 15th Constitution.

I know because I read it from the vulture's entrails.

How precise one can get using a vulture.

The Constituition is great, the problem is that no one obeys the laws in Brazil, no even the president Lula.
One of this days it was published in the media that he watched the movie "Os filhos de Francisco" using a DVD "pirata"
I have a law degree from Brazil, and after 5 years studying the old laws and the news laws, yes, because it's always changing... and after watching the nepotismo in the courts, I decided that I would be better off doing something else. To those that still have hopes. I say"
Brazil is the country of the future, but this future belongs to our grand grand children.

Americans believe that the only form of justice that matters is American justice even though to the rest of the world, American justice doesn't look, sound or smell much like justice at all. Such hypocrisy must end! As Dr. Martin L. King summoned in one phrase “If a man steps on your head…he will keep doing it until the time when you get up.”

keol

A nation in which the congress rarely legislates or obeys the law

A nation in which the very word reform is tabu and among politicians the very thought of reform is heresy

A nation in which the Judiciary only exists to serve itself and cannot serve justice or uphold the law

A nation that selectively eforces and ignores it´s constitution in order to serve the interests of those with the most power

Cannot be a government of laws - it can only be a government of men that can never change

Dear Friends,
All right, so no one obeys the laws in Brazil. You are right, of course.
Nevertheless, please don't forget that your so called democracy, in USA, is not realy what you learned in school. That "we the people" ideal is not so true. It is only a clever way used to legitimate the power.
Have you ever read "An Economic Interpretation on the Constitution", by Charles Beard (1913), or what Hannah Arendt said about the American "Democracy"?
Have you ever read this article?
Bush on the Constitution: "Just a goddamned piece of paper"
By DOUG THOMPSON
http://www.capitolhillblue.com/artman/publish/article_7779.shtml
Best regards,
Fernando Lima
Constitutional Schollar,
Belém- Pará- Brasil