The Unwritten Brazilian Constitution offers an unexplored topic outside Portuguese language: the leading cases on human rights in the Brazilian Supreme Court (Supremo Tribunal Federal – STF). The Brazilian Constitution of 1988 represents an institutional framework able to restructure the relationship between the powers after the military dictatorship. The constituents drafted the Brazilian Constitution in order to set an extensive system of judicial protection for fundamental rights, by means of several instruments that have strengthened access to the Judiciary. Because the Brazilian Constitution has an extensive list of fundamental rights, the STF was called to interpret them several times and it developed an unwritten understanding of these fundamental rights. These decisions are not available to the international community since they are not translated to English. Based on this gap, this original book illustrates the main rulings on human rights analyzed by great scholars in Brazil. The text presents a deep discussion regarding the characteristics of the cases and demonstrates how the STF has built the legal arguments to interpret the extension of the fundamental rights.
Rubens Becak is full professor at the Universidade de Sao Paulo and visiting professor at the University of Salamanca's Brazilian Studies Center.
Jairo Lima is professor at the Universidade Estadual do Norte do Parana.
TABLE OF CONTENTS
1 - The promises of the Brazilian Constitution of 1988 and the encounter between human rights and the Supreme Court
Rubens Becak and Jairo Lima
2 - The Brazilian Supreme Court and its Political Protagonism: an Overview of the STF and its Rise to Prominence in Brazilian Politics after 1988
3 - Freedom of speech: Ellwanger case
Cristina Godoy Bernardo de Oliveira
4 – Asking “The Woman Question”: Judicial Recognition of the Right to Abortion in Brazil
Melina Girardi Fachin and Estefânia Maria de Queiroz Barboza
5 - Embryonic stem-cells research at the Brazilian Supreme Court: or how to decide not to decide
Lucas de Laurentiis
6 - Affirmative action at the Federal Supreme Court: the difficult promotion of racial equity in Brazil
Maria Paula Bucci Dallari
7 - Gay marriage: the role of the Brazilian Supreme Court in recognizing the right to same-sex civil unions
Fernando de Brito Alves
8 - Criminalization of homophobia – Trial at the Brazilian Supreme Court
Simone Cristine Araújo Lopes
9 - Political Citizenship: Constitutional Commitments and limits in the exercise of Brazilian Party Democracy
10 - Corporate campaign donations
João Andrade Neto
11 - Home-schooling and religious education in Brazil
Nina Beatriz Stocco Ranieri
12 - High cost medicines and medical treatments in the Supremo Tribunal Federal (Brazilian Supreme Court)
Fernanda Duarte and Rafael Mário Iório Filho
13 - The presumption of innocence
José Duarte Neto
14 - The unconstitutional state of affairs in Brazil’s prisons
Emerson Ademir Borges de Oliveira
15 - Expanding constitutional dialogues in the judicial review: what are the institutional and behavioral challenges of the Brazilian Supreme Court as a human rights´ guardian?
Flavia Santiago Lima
The Brazilian Federal Supreme Court (STF) is one of the most important high courts in the world, but its caselaw is not well known. This landmark volume brings to English-language readers many of the most important decisions on rights, contextualized by leading Brazilian scholars. It is a wonderful addition to the literature on comparative constitutional law that opens the door to a rich and broad-ranging rights jurisprudence.
At long last, an English-language resource for scholars interested in the case law of the Supreme Court of Brazil, one of the world’s most powerful courts. Thanks to this invaluable book, the content and context of the Court’s judgments on rights and liberties are today accessible all around the world to English-speaking scholars. This book is an enormous contribution—a gift, really—to the global study of constitutionalism and constitutional rights.
In a period of intense debate on the future of the Brazilian constitution, this volume represents an essential reading for comparative constitutional lawyers and political scientists interested in Brazil's constitution and comparative constitutional change. Rubens Beçak and Jairo Lima have put together a terrific set of chapters: they shed a revealing light on the development of human rights issues in the Supreme Court's interventions and illuminate a new constitutional field.
The Unwritten Brazilian Constitution: Human Rights in the Supremo Tribunal Federal offers a fresh and enlightening observation of Brazils’ constitutional landscape. Is homophobia a crime? Is there a right to abortion? Is anti-Semitic speech part of freedom of expression? Can the court recognize same-sex union? These and other questions are reviewed in this fascinating book that explores the development of the Brazilian Constitution in the last 30 years and the important role the Federal Supreme Court has played in this development. It is an essential reading for anyone interested in the Brazilian constitution but also for those who want to know more about constitutional transformation, rights, judicial review and constitutionalism more generally. Rubens Beçak & Jairo Lima have successfully brought together a superb line-up of scholars who introduce Brazil to the wider world and provide important insights for comparative constitutional studies.