The last days of the military regime (1964-1985) coincided with an incredible rise of politicisation in the Brazilian judiciary. Since the 1980s, many Brazilian judges decided to coalesce themselves around the idea of ‘alternative use of law’.
The ‘Movement for Alternative Law’ is actually one of the most influential legal schools among judges and lawyers of this country. Judges who embrace the value of ‘alternative use of law’ normally argue that they do so in order to protect ‘the best interests of the oppressed classes’.
Similarly to ‘free-law’ movements of pre-Nazi Germany, ‘alternative lawyers’ of today’s Brazil demand an ongoing re-interpretation of all existing laws.
Such reinterpretation, as Lothian Tamara explains, implies that judges “always should attend the needs and expectations of the marginalised and disadvantaged, and it should resist the crushing of what Habermas would call ‘the life world’ (the fine structure of moral reciprocities in everyday life) by the wooden and violent generalities of state law”.(1)
Brazil’s ‘Alternative Law Movement’ by far outreaches, both in terms of proportion and level of legal (and political) influence, the ‘Critical Legal Studies’ movement in the United States.
In Brazil, the idea of ‘alternative use of law’ is so popular that a survey among state judges from Rio de Janeiro showed that 62 percent of them have already decided cases under direct inspiration of ‘alternative law’ themes.(2)
Another survey indicated that 83 percent of all judges believe that the courts do not have to be impartial, and that their power has to be used in order to influence social change.(3)
In practice, abstract jargons related to ‘alternative law’ give to each singular judge an enormous discretionary power, allowing him or her for instance to develop only rhetorical arguments instead of analytical ones.
This fact implies that judges who decide according to ‘alternative law’ might be deciding cases mainly on the basis of ideological points-of-view, and not by taking a more careful attention in legal norms and principles.
Of course, the personal opinion of such politicised judges might clash with legal provisions which were democratically enacted by the Brazilian Congress.
When judges in Brazil were presented with the choice between applying legal norms and promoting ‘social justice’, three-quarters of them explicitly declared that they would prefer to promote their personal understanding of the latter rather than applying positive law.(4)
Also, they argued that the judicial branch has the duty of developing “an active role in reducing social inequalities”. Thus a judge from the Supreme Court (STF), Marco Aurélio Mello, described his way of deciding on legal cases: “Always when I face a controversial case, I do not look for the dogma of the law. I try to create within my human character a more adequate solution”.(5)
One may obviously suggest that Brazilian judges need to be more informed of what really happened in England during its Industrial Revolution. According to Douglas North and Robert P. Thomas, the process of industrialization took place in that country only because English judges were keen to enforce legal norms, property rights, and civil contracts.
As they also explain, judicial enforcement produced in England positive levels of widespread social confidence in the legal system, as a fact that made entrepreneurs confident to invest in technology which led to more social and economic prosperity.
On the other hand, non-enforcement of legal norms and contracts inhibits private investment and reduces the willingness of debtors to pay what is owed to creditors. In Brazil, potential creditors do not lend more money to the poor, and to the potential entrepreneur who gives work to the poor, because they reasonably think judges would not be willing to protect them against the opportunistic behaviour of borrowers.
A well-known Brazilian economist, Armando Castelar, explains that even when the law is very clear about protection of creditors’ rights, some judges in Brazil still do not reinforce these rights. As Castelar says, housing mortgages scarcely exist in Brazil because judges are broadly seen as too reluctant to allow banks to foreclose.
Although the idea of judicial independence is normally mentioned by legal theorists as a precondition for the rule of law, the concept cannot become a reality if judges abuse of their independence in order to unduly obstruct governmental policies personally disliked by them.
A few years ago, judges attempted to paralyse economic policies elaborated by a democratically elected government. In 1995, the power struggle between federal government and politicised judges, who were opposed to any sort of privatisation, ended up by making the sale of the CVRD, the world’s largest iron-ore mining company, held on four different occasions on account of twenty-two injunctions.
Injunctions were granted to minority groups that were ideologically contrary to the selling of any kind of state-owned company. On this occasion, judges who normally embrace the value of ‘alternative use of law’ became strict legal positivists, arguing for the invalidity of the CVRD auction on the grounds that prospectus for its privatisation were published ‘only’ in business publications.
In 1998, judges tried once again to block the auction of a public company, a telephonic company called Telebrás. Similarly to what happened when the government was selling the CVRD, the basic strategy of judges was to find technicalities in the law that could eventually lead to obstruction of that privatization.
At this time, however, the government seemed to be better prepared for the judicial battle, as it had hired with taxpayers’ money 700 lawyers to challenge last-minute injunctions.
Another good example of politicisation is the way some judges interpret an article of the Brazilian Constitution related to ‘social function’ of property. Although the basic law of the nation does not explain what ‘social function’ really means, it goes nonetheless to explicitly declare that citizens have the ‘fundamental right’ to preserve and inherit their property.
Actually, property can only be taken away from them for reasons of ‘relevant public interest’ and, when this is precisely the case, through ‘fair compensation in money’. However, some judges have decided to do away with this individual right by arbitrarily conferring to ‘social function’ the unconstitutional meaning of their arbitrary redistribution of private property.
While the Constitution says in its Article 5, provision XXIV, that property needs to respect its ‘social function’, it also says in the same Article 5, provision XXIII, that private property constitutes a ‘fundamental right’ of individual citizens. Also, Article 5 clearly declares in its provision XXV that expropriation of property can only be done by means of ‘fair compensation in money’.
In brief, the highly abstract value of ‘social function’ was placed by the constitutional lawmaker between two absolutely clear provisions that fully guarantees the individual right to acquire and preserve private property.
Actually, this right has been protected even by a ‘stone clause’ to the Brazilian Constitution which goes on to explicitly forbid any proposal of amendment seeking to alter constitutional rights and guarantees of the individual, including the right of private property.
To sum up, it is totally against the Constitution to apply ‘social function’ with the meaning of arbitrary confiscation of private property by the Brazilian judiciary.
Unfortunately, a judge from the state of Rio Grande do Sul, Luis Christiano Enger Aires, rejected on October 15, 2001, a farmer’s right to regain his property invaded by members of a radical organization called MST. In his ‘legal’ reasoning, the judge talks about the supposed existence of a ‘conflict’ between property rights and the so-called right of land invaders to a ‘worthy life’.
Thus he decided to not authorise the landowner to regain his own property, deciding instead to uphold the so-called right to a ‘worthy life’ for land invaders. The State High Court (TJ) went on to further confirm such a decision at the level of court appeal, as a highly controversial decision which led the editor of Zero Hora, the state’s leading newspaper, to utter the following words:
“The invasions of private property which have been happening over the last days have once again confirmed the aggressive, illegal, and prepotent way in which they are normally performed. However, there is a new fact in this issue: it is the alternative content of judicial decisions and, particularly, their purely ideological character.
“On behalf of our civilized existence, we can never regard as natural and acceptable that judges, whose function is basically to administer justice, might instead decide to give for themselves the power of unlimited arbiters of what is law…
“By undermining a basic legal right of the Brazilian Constitution, these judicial decisions have made the request for agrarian reform much more explosive in this country. What should be always decided through fair legal reasoning and common sense has now been transformed by judges into an insoluble problem and, almost certainly, a focus of much more violence”.(6)
Another good example of excess of politicisation in the judiciary has occurred in the state of Mato Grosso. In January 2004, federal judge Julier Sebastião da Silva decided to issue a judicial order which forced all American visitors upon arrival in this country to be fingerprinted and photographed by the federal police.
His decision was not based on statutory provision and, actually, immigration authorities even confessed that they were completely unprepared to register foreigners in such a manner. As reported, even American nursing babies were fingerprinted.
Mr. Silva, a judge who started legal carrier as a lawyer for the Workers’ Party (PT), argued that “Americans cannot treat Brazilians arbitrarily, branding them as terrorists with no evidence”. He obviously ignored the fact that Americans are currently facing a serious threat of terrorism, and, therefore, have their own reasons for being wary of any visitor.
What is more, nothing can possibly justify the nasty parallel this judge has traced between a free and democratic society like the United States and Nazi Germany. As John Fitzpatrick correctly commented on this case:
“The judge’s decision was petty and vindictive and not based on any legal statute or argument, and his comments were exaggerated and offensive. His description of the US position as being ‘worthy of the worst horrors committed by the Nazis’ was particularly unfortunate since tens of thousands of American servicemen were killed fighting the Nazis and 600 Brazilian troops died in the Italian campaign”.(7)
The facts mentioned above are just a few examples of how much politicised the Brazilian judiciary has become. Unfortunately, it is certainly an universal truth for any legal system, whether it might be based on Civil Law or on Common Law, that legal norms have to be seriously applied, and not only selectively enforced by members of the judiciary.
All in all, confidence in the rule of law certainly diminishes if the courts are constantly behaving in politically, by not applying legal norms with a more reasonable level of predicability. In Brazil, “the interpretation of the law frequently accommodates the judges’ political views”.(8)
If people in this country appreciated the way judges ‘apply’ so-called ‘alternative law’, then, some of them would not be dealing with many criminals by means of lynchings and vigilante justice. Although judicial politicisation is obviously not the main reason for these problems, it seems quite reasonable to sustain that judges are not helping their society to realise the rule of law.
According to Dyson Heydon, an outstanding judge from the High Court of Australia, “if trials are slow and uncertain, and are not seen as objectively just, the chances of peaceful settlement of disputes are reduced and the temptation to violent self-help increases”.(9)
And since the serious matter of corruption among Brazilian judges also implies any sort of unduly deviation from the content of law, excess of politicisation in the judiciary might eventually facilitate more corruption.
As one might say, corruption normally takes forms that are more insidious than outright bribery, and there would be in this sense reasonable to suggest that a stricter adherence to positive law generates much more legal certainty, which is by itself a basic condition for the full realization of the rule of law.
In fact, the excess of politicisation currently taking place in the judiciary may contribute to corruption because it interferes in the regular course of legal actions in ways that nobody is able to foresee. Actually, judges who have abused of their position to satisfy partisan and/or private ends cannot be even regarded as acting in good faith, and, as such, they may be properly deemed as illegitimate authorities.
After all, judges always have the obligation of being perceived by society as impartial and equitable administrators of justice, if the rule of law is really made to prevail as an effective condition for development of a free and democratic society. Without a reasonable level of predicability to decisions made by judges there will be always an open door for problems of corruption and impropriety.
(1) Lothian, Tamara; The Democratized Market Economy in Latin America (and Elsewhere): An Exercise in Institutional Thinking within Law and Political Economy. Cornell International Law Journal, Winter 1995, p.211.
(2) See: Ballard, Megan J.; The Clash Between Local Courts and Global Economics: The Politics of Judicial Reform in Brazil. Berkeley Journal of International Law, 1999, p.256.
(3) Bellard, op cit., p.256.
(4) Bellard, op. cit, p.256.
(5) Bellard; op. cit. p.276. (Quoting from an interview published in Isto É, in 1999).
(6) Elemento Complicador. Editorial from Zero Hora. Porto Alegre, October 23, 2001.
(7) Fitzpatrick, John; “Welcome to Brazil – Say ‘Cheese’.” Brazzil, January 2004.
(8) Pinheiro, Armando Castelar, and Cabral, Célia; “Credit Markets in Brazil: The Role of Judicial Enforcement and other Institutions”. Paper prepared as part of the research project ‘Institutional Arrangements to Ensure Willingness to Pay in Financial Markets: A Comparative Analysis of Latin America and Europe’, conducted by Centre for Studies of State Reform from Getúlio Vargas Foundation (CERES/EPGE/FGV), December 1998.
(9) Heydon, Dyson; Judicial Activism and the Death of the Rule of Law. Quadrant, January-February, 2003, p.10.
Augusto Zimmermann is a Brazilian Law Professor and PhD candidate for Monash University – Faculty of Law, in Australia. The topic of his research is the (un)rule of law and legal culture in Brazil. He holds a LL.B and a LL.M (Hons.) from the Pontifical Catholic University of Rio de Janeiro, and is a former Law Professor at the NPPG (Research and Post-graduation Law Department) of Bennett Methodist University, and Estácio de Sá University, in Rio de Janeiro. His email address is: email@example.com.