Kara Sears
Brazil is a civil law country, but its legal system has been influenced by common law elements. The Brazilian Constitution divides judicial power between the federal and state judicial branches, with different jurisdictions and court structures. The country's highest courts, the Supreme Court and the Superior Court of Justice, handle constitutional and federal law issues, respectively, and their decisions are binding on lower courts. The New Civil Procedure Code of 2015 has introduced common law elements, such as a more flexible litigation process and a focus on written submissions. Brazil's legal system, like other civil law systems, is primarily based on codified laws and statutes rather than legal precedents, with influences from Italian, German, and Napoleonic legal traditions.
| Characteristics | Values |
|---|---|
| Type of legal system | Civil law |
| Basis of the legal system | Italian Civil Code of 1942 |
| Features of the legal system | Binding precedents, procedural agreements, written submissions, oral arguments at the appellate level, litigants pay litigation costs |
| Judiciary structure | Divided between the judicial branches of the states and the Federal judicial branch |
| Number of law school programs in 2007 | 1,024 |
| Number of law students in 2007 | 197,664 |
| Number of lawyers in 2010 | 621,885 |
| State with the largest number of lawyers in 2010 | São Paulo (222,807) |
| Judicial districts | Named comarcas, composed of one or more municipalities |
| Courts of Justice | 27, with jurisdiction only over their state territories |
| Highest court in non-constitutional issues | STJ (Superior Court of Justice) |
| Highest court for constitutional issues | STF (Supreme Court) |
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What You'll Learn
Brazil's civil law system
Brazil is a civil law country, but its legal system has been influenced by common law elements. The country's judiciary power is divided between the judicial branches of the states and the Federal judicial branch, each with different jurisdictions.
The Brazilian legal system is primarily based on written submissions, with oral arguments generally heard only at the appellate level. The New Civil Procedure Code of 2015 introduced elements of common law jurisdictions, including the implementation of precedents set by the Supreme Court and the Superior Court of Justice, the highest courts for constitutional and federal law issues, respectively. These precedents are now binding on lower courts, allowing for a more flexible system where litigants can enter into procedural agreements.
The Supreme Court and the Superior Court of Justice can review decisions made by federal and state courts only when constitutional or federal law issues are involved. Their standard of review is limited to questions of law, and they do not review evidence produced in lower courts.
Brazil's court system includes specialized courts of first instance for family litigation or bankruptcy in some judicial districts, known as "comarcas." Each "comarca" has at least one trial court, with a law judge and a substitute judge. The judge decides alone in all civil cases and most criminal cases, except for intentional crimes against life, which are judged by a jury.
The highest court for non-constitutional issues is the Superior Court of Justice (STJ), which grants special appeals when a judgement of a court of second instance conflicts with federal statute dispositions or when multiple second instance courts rule differently on the same federal statute. The Superior Court of Justice also grants Extraordinary Appeals for judgements that violate the constitution.
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The role of the Brazilian Constitution
Brazil is a civil law country, which means its legal system is based on a comprehensive set of codified laws. The country has a civil law system, and the influence of Roman law is evident in its legal principles and codes. The Brazilian legal system is primarily based on written statutes, with the Constitution as the fundamental framework. The Constitution is the supreme law, and all other laws and regulations derive their authority from it.
The current Brazilian Constitution is the result of a lengthy democratic process that began in 1985 after the end of the military dictatorship. It was promulgated on October 5, 1988, and it establishes the country's fundamental principles, form of government, and guarantees individual rights and liberties. The Constitution has been amended several times since its enactment to adapt to the country's social and political developments.
One of the key features of the Brazilian Constitution is its emphasis on protecting fundamental rights. It guarantees a wide range of civil, political, social, economic, and cultural rights to all citizens and residents. These include traditional liberties such as freedom of speech, religion, and assembly, as well as social rights to education, health, and social security. The Constitution also establishes the principles of equality before the law and non-discrimination, ensuring that all individuals are treated equally regardless of their personal characteristics or social status.
The Constitution also plays a crucial role in shaping Brazil's economic policies and development strategies. It establishes the guidelines for the country's economic system, including the role of the market, the protection of private property, and the promotion of economic development. The Constitution also provides for the intervention of the state in the economy to promote public welfare, reduce regional inequalities, and ensure a balanced distribution of income and wealth.
In addition to its domestic role, the Brazilian Constitution also influences the country's international relations and position in the global arena. It establishes the principles that guide Brazil's foreign policy, including the peaceful settlement of international disputes, non-intervention in the affairs of other countries, and the promotion of international cooperation. The Constitution also affirms Brazil's commitment to international law and human rights, reflecting the country's desire to be a responsible and constructive actor on the world stage.
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Common law elements in Brazilian courts
Brazil is a civil law country, but the New Civil Procedure Code of 2015 has introduced elements of common law to the Brazilian legal system.
The Supreme Court and the Superior Court of Justice are the highest courts for constitutional and federal law issues, respectively. Certain precedents set by these courts are now binding on the lower courts, which has mitigated the old judge-centric model in favour of a more flexible system. Litigants may now enter into procedural agreements outlining the number of court submissions, deadlines, and the type of evidence to be presented. The legal process is conducted mainly through written submissions, with oral arguments generally only being heard at the appellate level.
Brazilian litigants must pay litigation costs incurred during the proceedings until the final judgment is rendered by the trial court. For example, a plaintiff must advance the filing fees and costs to effect service of process. A plaintiff who is not resident in Brazil and does not own real estate there must post a bond that is sufficient to cover court costs and the defendant's court-awarded legal fees in the event that the lawsuit is unsuccessful.
Small claims courts are available at the federal and state levels for less complex matters involving up to 40 times the minimum wage (approximately $10,000). These courts are subject to informal and streamlined proceedings, and decisions can be appealed to a panel of three first-instance judges.
Court filings and proceedings are generally open to the public, but judges may seal the records to protect privacy, as well as public and social interests. This also applies to matters involving arbitration and family law.
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Judicial power and jurisdiction
Brazil is a civil law country with a judiciary that operates on both state and federal levels. The Federal government of Brazil is defined by the 1988 constitution, which outlines a tripartite separation of powers into the legislative, executive, and judicial branches of government. The judiciary is the group of public entities designated by the Brazilian constitution to carry out the country's judicial functions.
The Brazilian judiciary is divided between the judicial branches of the states and the Federal judicial branch, with different jurisdictions. Each state territory is divided into judicial districts called 'comarcas', composed of one or more municipalities. Each 'comarca' has at least one trial court, a court of first instance, with a law judge and a substitute judge. The judge decides alone in all civil cases and most criminal cases.
The highest court of a state judicial system is the Court of Justice ('Tribunal de Justiça' in Portuguese). There are 27 Courts of Justice, one per Brazilian state, headquartered in the state capital, functioning mostly as an appellate court, and one in the federal capital. The Court of Justice can review any decisions taken by the trial courts and has the final word on decisions at the state level, though federal courts can overturn these decisions.
The Superior Court of Justice is the highest court for non-constitutional issues and grants a Special Appeal when a judgement of a court of second instance breaches a federal statute or when two or more second-instance courts make different rulings on the same federal statute.
The Supreme Federal Court is the highest body of the Brazilian Judiciary and is the guardian of the Brazilian Constitution. It has original jurisdiction and appellate jurisdiction. Its original jurisdiction includes lawsuits involving the federal government, extradition requests, and injunction mandates against federal entities. Its appellate jurisdiction includes ordinary appeals of superior court decisions and extraordinary appeals of decisions of appellate courts that violate the constitution.
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Brazilian court structure
The Brazilian legal system is composed of 26 states and a federal district. The federal government is divided into three branches: executive, legislative, and judiciary. The judiciary is further divided into federal and state courts.
The Supreme Federal Court (STF) is the highest body of the Brazilian judiciary and is composed of 11 ministers. The court's main responsibility is to serve as the guardian of the Brazilian Constitution. The ministers are chosen from citizens between 35 and 65 years of age, with notable juridical knowledge, and are initially suggested by the President, then vetted and approved by the Senate through the Commission of Constitution.
The Superior Court of Justice is another important court in Brazil. It hears appeals from cases in the Regional Labor Courts and cases regarding its own jurisdiction and the maintenance of its authority.
The Regional Electoral Courts, the Superior Electoral Court, and electoral judges control the Brazilian Electoral system. The Superior Electoral Court is composed of seven members, three chosen from the ministers of the Supreme Federal Court, two chosen from ministers of the Superior Court of Justice, and two chosen from lawyers.
The Superior Labor Court (Tribunal Superior do Trabalho) is the highest court for labor justice. It is composed of 27 ministers, named by the President of Brazil after approval by the Brazilian Senate, with a fifth of whom must be lawyers or members of the Public Ministry, and the rest composed of Labor Judges.
The military justice system is divided into federal military justice and state military justice. The former is in charge of matters concerning the Brazilian Armed Forces. The first instance of federal military justice is the Councils of Justice, formed by a military judge and four officers. The second instance is the Superior Military Court, which acts as an appellate court for the Councils of Justice and also for specific appeals from the second instance of state military justice.
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Frequently asked questions
Brazil is a civil law country, with its civil code influenced by the Italian civil code of 1942.
Civil law, also known as Roman law, is the most widespread legal system by landmass and population. It is interpreted rather than made by judges, and only legislative enactments are considered legally binding.
Common law is the most widespread system when measured by the number of people that use it. It developed in England and was influenced by Anglo-Saxon law and the Norman conquest. It was inherited by the Commonwealth of Nations and most former colonies of the British Empire.
