Tempo Direito E Constituição: Reflexos na Prestação Jurisdicional do Estado (Portuguese Edition)

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There is no clear majority position of the judicial branch when taking decisions involving social rights in class actions, but some of them affect local public policies, such as municipal health system and education's budget. The legitimacy of non-elected judges deciding according to a principalogical constitution, and judge's power to manage public policies that cannot be scrutinized or easily overruled without previous discussion by citizens and other branches of government, is a growing concern.

So, the matter lays on answering to which extent it is possible to have governance being built on the judiciary as a way to resist to symbolic violence structures, ultimately helping to widen decision making fields and recognizing the new actors as relevant subjects in conceptualizing, constructing and taking part in democracy GREENE, Complex societies such as the Brazilian one, is broadly opened to judicialization of politics.

The crisis of democratic representation in which legislature and executive lay its legitimacy enlarges judicial power. Bourdieu's method 5 offers some decisive clues to comprehend how law really functions in society and what are the ways to make the judiciary more democratic. Bourdieu gives an important contribution to the discussion of power - It goes beyond reductionisms and strict categories, extending his analysis to structures systemic and agents subject.

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His treatment exceeds power acquisition, perpetuation and configurations, bringing a strong criticism against scientific production and domination models as a whole. To him, it is impossible to share values and representations. According to Bourdieu, there are no concessions to power, but, actually, strategies, gain and perpetuation of symbolic capitals in a legitimacy chain BOURDIEU, ; Bourdieu's theory is based on some key concepts such as: orthodoxy representing the dominant social agents and symbolic capital holders , that is moored in authority's ideal and holds a large amount of symbolic violence; heterodoxy the dominated social agents , which holds little structured capital, and consequently, gets closer to heresy and subversion; doxa, an universe of agent's assumptions and strategies developed by those who fight in the field; field, which lays on social positions deriving from laws and proper rules, meaning objective relation structures derived from invisible symbolic powers that come from the complicity among those who put it into action and those who submit to it; habitus , a set of reality categorization schemas which are embed by the most structured and structuring distinct processes, all of them related to practices and behavior regularities.

Specific interactions among those elements define the symbolic violence, one key concept that holds all Bourdieu's thoughts structure, working as a determining, structural and equalizing element, considering its subsistence to all its other conceptions, even depending on them, but never the opposite. Its effectiveness does not depend on objective structure, which in the juridical field would be easily detected on the coercion element, but also in structured and structuring cognitive frames.

Both, on the other hand, use symbols, in order to follow their legitimizing duty of imposition and domination, ensuring symbolic violence inside the field BOURDIEU, It is pointed out that such domination process is effective if it is followed by an ideological system, promoted by experts who fight for ideological production monopoly's legitimation, aiming to set a structured and structuring dominance discourse orthodoxy in order to tame the dominated ones BOURDIEU, This is not more than mooring habitus to standardize thinking 8.

Symbolic violence operates in juridical field with great efficiency because it legitimates its acts, by means of legality and rule of law's principles taken as justice standards. This incapacity can be seen in the always-delicate land's reform theme. Regarding juridical fields, Bourdieu heads his proposition categorizing society, which connects categories to specific ideal types, such as law.

Is his opinion:. It is also important to keep in mind, due the previous concepts of field and habitus, how the author explains its operation.

According to that, the field is an environment structured by positions where dominant and dominated social agents fight to obtain and maintain specific functions and where agent's positions are set a priori ; and habitus is the individual's place where they express their most diverse modes regarding conditioned and oriented actions, to specific means. The symbolic violence is developed by orthodoxy inside the field.

However symbolic violence is an "[ It is clear that, whether orthodoxy, once playing the dominant role, holds a self-referent symbolic capital, based on authority - law, jurisprudence, doctrine - heterodoxy as the dominated, holds little structured capital - organization, mobilization BOURDIEU, ; ; Thus, focusing on juridical field and considering that governance may have a potential power to operate symbolic resistance, it is possible to state that symbolic assets' production is linked to the awareness of social actors' on how symbolic violence is processed, rather than processes of resistance.

It happens due to the fact that the judiciary - as a looming and eminent doxa's representative - presents a structured and structuring discourse, tending to perpetuate its primary assumptions.

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The domination's process remains intact because in the field holds, in a systemic way, the existence of a set of written corpus crowns rightful and fair views of a social world BOURDIEU, , p. After all, disagreements between "authorized interpreters" are limited or sidelined, and the coexistence of a competing juridical rules' plurality is drastically reduced. Just as it happens in religious, philosophical or literary texts, legal literature implies divergent meanings. Nevertheless they got hidden in precedents, doctrine and costumes, which constitute themselves as modes of symbolic appropriation.

Almost 25 years of dictatorship silenced social movements that had some strength in Brazil during the s and s. The constituent process that resulted in the Brazilian Constitution of had barely been able to mobilize society toward its own rights achievement. In recent years the situation has moved quickly and in it had a very strong plea that probably had a great influence in the presidential election in Brazil that year. Politics and law have complement roles in this path. While social policies focused on social rights have been assigning more dignity to people, there is also a constitutional theory that recognizes the enforceability of social rights and, doing so, makes legitimate the pursuit to the judiciary to guarantee them.

Besides social rights, the Brazilian constitution also established a large cast of rights that, by their own nature, are collective, such as healthy environmental, food safety, water and traditional knowledge. All those rights' implementation imposes challenges to government that shall balance political interests, social demands and budget restraints. The best ways to legitimate its choices is sharing decisions with the civil society, being accountable with transparent decision-taking processes and being responsive about social demands. Unfortunately none of the three ways is often seen in the day-by-day politics.

As a consequence interest groups, NGO's and groups of citizens with the same interests or necessities, are more and more looking for judicial assistance, to put pressure and to make more effective social and collective rights guaranteed in the constitution.


Typically, contemporary constitutional theory identifies two systems of judicial review. The North American, which is characterizes as a diffuse model exercised through concrete cases, and the Germanic system, wherein control is essentially abstract and concentrated. Brazil adopts what is called a mixed system of judicial review, which combines the traditional concrete and diffuse system, typical from the US, and the German abstract and concentrated control, particularly to the supreme federal court of Brazil.

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As a result, in their zeal to protect the new charter, Brazilian magistrates, particularly the Justices of the Supreme Court, accumulate power similar to North American and German judges without the typical restraints existing in both systems, such as stare decisis and concentrated jurisdiction, respectively. This mixed system attaches to the justices a huge power to interpret the constitution and decide whether law and actions are consistent with it or not.


Supreme Court Justices are supposed to analyze and decide all questions according to the constitution, but once it is a very principalogical and "opened" chart, any decision can virtually be extracted by the document. Thus the decision is always, in some degree, a political decision, even being a constitutional one. In fact, some of the most important political decisions involving fundamental rights and public policies to protect have been taken by the Brazilian Supreme Federal Court STF in the last few years, as showed below:. Pregnancy of anencephalic fetuses - On April the Brazilian Supreme Federal Court ruled that abortions of anencephalic fetuses could not be penalized.

Although the constitution protects life as well as potential life, Justices have understood that in the case of anencephalic fetuses even the potential life does not exist. On the other hand, they considered that the dignity of the human being in case, the potential mother's would be hurt and should also be protected under the constitution.

The decision concluded a strong battle between pro-choice and pro-life groups, both very strong represented in the public hearing held by STF in April Stem cell research - On March , the STF decided that the law that allowed stem cell research was constitutional. A public hearing where a hard dispute was fought among scientists, scholars and representatives form different religions concerning to ethical and protection of life problems preceded this important decision.

Same-sex union - Although the constitution states that marriage is between man and woman, it also defines sex and gender discrimination as a crime. The decision recognizing the union to some civil effects was taken on June , after great pressure from pro-GLBT and homophobic groups, as well as media and churches. The judicial case addresses the balancing of the constitutional right of presumption of innocence until proven guilty, versus the need to sanction a politician who has potentially committed a criminal offense. Politicians decided to take the case to the Supreme Court because the law established that any politician convicted by a judicial or an administrative court would be disqualified as a potential candidate for political office for any level of government for a period of eight consecutive years.

The law applies to candidates even if a conviction is pending a decision by a higher court and politicians argued that, according to the Constitution a person is considered innocent until the final judgment. STF ruled that a person who has been convicted by a judicial authority once is already guilty, although he has the right to appeal.

All these decisions were based on the interpretation of the Constitution, but opposite understanding could also have been expressed, that emphasizes the strong political role of the decisions. Besides these cases, the Supreme Court analyses everyday many issues arising from the conflict of interest based on two or more different constitutional principles, such as private property and social function of property, development and healthy environment, universal health system and special treatment or medicine supplier for patients, public education and vacancies in public schools, housing and poor condition of lodge, and so on.

In all those issues, the Supreme Court was called to analyze and decide political questions. Unlike the US, the Brazilian judicial review does not allow the Supreme Court to decline to adjudicate evoking the doctrine of political questions. This is one element that favors the process of judicialization of politics.

Once the Supreme Court is compelled to take political decisions, it arises the question of legitimacy. Where does the justices' legitimacy come from? The Supreme Court justices are not elected and, different form lower level judges, who assume the position after being approved in high difficult tests that take about two years, their appointments are overall a President's choice.

The Senate must also approve the nomination, but this is usually just a formal procedure in Brazil and civil society does not participate on the debate. Once they are appointed, they have lifetime tenure until mandatory retirement at 75 years old One one side, this is a guarantee of judicial independence, but it is also an easy path to the abuse of power.

The increasingly political role of the judiciary contrasts with the lack of consult and participation by the civil society over its decisions, over the legitimacy of the decision-making process and about the personal interpretation that justices make of the Constitution.

Civil law countries, especially those under the presidential system, still have their government's structure strongly based on the Montesquieu's theory regarding separation of power. Although there should always have had cooperation, "political engineering" regarding to establish effective mechanisms of checks and balances among the legislative, executive and judiciary branches envision permanent challenges.

As much as limits of cooperation and control are fuzzy, so are their fields of action. This is more evident in the context of judicialization of politics in which the judiciary takes a growing political role. Representative democracy on contemporary and complex societies still has a leading role in defining, controlling and legitimating political decisions.

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Although citizens and civil society claim better ways to participate of political decisions, mainly representatives still play this role. They are elected and could easily be substituted when acting in opposition to the interest of their voters. Different from the legislative and executive branches, the nature of the legitimation of decision-making process by Brazilian judiciary has other roots. It used to be strongly based on the technical knowledge of judges as well as on impartiality regarding to parts involved in a lawsuit. Nowadays, it is more and more based on the legitimation of decision-making process.

Nova York, Columbia University Press. Sociology , 41 1 : Tempo Social , 20 1 : BRAH, Avtar. Cadernos Pagu , Sociology , 30 4 : Chicago, The University of Chicago Press. Fordham Law Review , Feminist Legal Studies , Annual Review of Law and Social Sciences , 4: British Journal of Sociology , 46 2 : Abel e P. Lewis orgs.

Oxford, Hart Publishing. Feminist Legal Studies , 17 1 : Title VII provides a legal definition of crimes of forgery of documents, technical reports, currency and stamps or franks, weights and measures, office stamps, currency plates and paper, describing the respective penalties according to the nature, evidentiary or trust value or public use or disposal of the forged objects, providing for seizure and forfeiture and loss of objects used for said purpose.

Lastly, Title VIII defines crimes against the economy, providing for criminalization of money laundering, following the most recent doctrine on criminalization of antieconomic activities, tax fraud and smuggling and evasion of duties, regarding customs or border issues. The Code maintains criminal punishment for disobedience of requisition of assets ordered by the Government as well as behavior likely to disturb, harm or hinder performance of certain public acts such as public competitive exams, tenders or court auctions.

Throughout this Code, there is an attempt to strike a balance between the abstract criminal framework, addressing the type of crime and its severity, with the hierarchy of legal interests protected by each article and the maximum limits established for prison sentences. Another factor characterizing the legislative alternatives chosen in the Penal Code is the differentiated treatment given to more serious crimes, where, generally speaking, the only penalty provided is a prison sentence. As a rule, for less serious crimes, on the other hand, the definition of the crime usually enables the court, according to the circumstances, to decide on either the alternative of imprisonment or penalty of fine, enshrining as criminal guidance policy the acknowledgment of a fine as an autonomous penalty and not complementary to the main penalty.

The approval of this present Code provides the Timorese State with yet another modern and adequate legal instrument to provide criminal law services of the highest quality whilst respecting fundamental rights of its citizens, obliging magistrates, public defenders, attorneys, court officers and other legal actors who make these legal instruments the tools of their daily work to engage in ongoing education, strengthening the national legal system and the Democratic Rule of Law. Principle of legality 1. No act or omission may be qualified as crime unless it was defined as such by law before it was committed, with the respective punishment described.

Security measures may only be applied to cases of danger to self and others, with the conditions thereof previously determined by law.