The Constitution of Brazil: A Contextual Analysis
Virgílio Afonso da Silva - Hart Publishing, 2019
This
book offers an original and comprehensive analysis of Brazilian
constitutional law and shows how the 1988 Constitution has been a
cornerstone in Brazil's struggle to achieve institutional stability and
promote the enforcement of fundamental rights. In the realm of rights,
although much has been done to decrease the gap between constitutional
text and constitutional practice, several types of inequalities still
affect and sometimes impair the enforcement of the ambitious bill of
rights laid down by the Brazilian Constitution. Within the organisation
of powers, the book not only describes how its legislative, executive
and judicial functions are organised, but above all else, it analyses
how a politically fragmented National Congress, a powerful President and
an activist Supreme Court engage with each other in ways that one could
hardly grasp by reading the constitutional text without contextual
analysis. Similarly, the book also shows how the three-tiered federation
established in 1988 has undergone a process of centralisation led not
only by the central government but also by the Brazilian Supreme Court.
In addition to chapters on organisation of powers, fundamental rights,
federalism, and the legislative process, the book also presents an
overview of Brazilian constitutionalism with a special focus on the
transition from authoritarianism to democracy, which led to the
enactment of the 1988 Constitution. In the conclusion, the author argues
that part of the Constitution's transformative potential remains to be
realised. Enforcing the Constitution, not changing it, has been the real
challenge in the last three decades and will continue to be for many
years to come.
