The law of Brazil is based on statutes and, partly and more recently, a mechanism called súmulas vinculantes. It derives mainly from the European civil law systems, particularly the Portuguese, the Napoleonic French and the German (especially the German Civil Code).
There are many codified statutes in force in Brazil. The current Federal Constitution, created on October 5, 1988, is the supreme law of the country. This Constitution has been amended many times. Other important federal law documents in the country include the Civil Code, the Penal Code, the Commercial Code, the National Tax Code, the Consolidation of Labor Laws, the Customer Defense Code, the Code of Civil Procedure, and the Code of Criminal Procedure.
Brazilian law is largely derived from Portuguese civil law and is related to the Roman-Germanic legal tradition. This means that the legal system is based on statutes, although a recent constitutional reform (Amendment to the Constitution 45, passed in 2004) has introduced a mechanism similar to the stare decisis, called súmula vinculante. Nevertheless, according to article 103-A of the Brazilian Constitution, only the Supreme Court is allowed to publish binding rules.[2] Inferior judges and courts, and the public administration, are hence obliged to obey the interpretations of the Supreme Court.
In more recent times, according to the judiciary structure framed in the Brazilian Constitution, judicial power is divided between the judicial branches of the states and the Federal judicial branch, and they have different jurisdictions. The prerogatives and duties of judges are the same, however, and the differences lie only in the competencies, structures and compositions of the Courts.
In 2007, there were 1,024 Law school programs in Brazil, with 197,664 law students. Law schools are present in each of the States of Brazil.[3] In the United States the number of law schools were only 180. The U.S. State of Alaska does not have a law school.[4] In 2010, the total of lawyers in Brazil were 621,885. The State of São Paulo had the largest number, 222,807 lawyers, one third of all working lawyers in the country. The State of Rio de Janeiro had 112,515 lawyers, and the State of Minas Gerais had 63,978 lawyers.[5]
Students studying law in Brazil take five years to complete their education at a law school. Upon completing their studies, they need to pass an exam held by the Bar Association of Brazil (Ordem dos Advogados do Brasil in Portuguese).[6]
The overall median income of the Brazilian lawyer was R$36,120 per year in 2007. The starting median income was R$20,040, and the top median was R$3,000,000. The Brazilian judge had an overall median income of R$170,000. The starting median income was R$150,500, and the top median was R$310,500. The Brazilian prosecutors had an overall median income of R$150,000. The starting median income was R$140,000, and the top median was R$270,000 per year.[7] Nowadays, Brazilian judges and prosecutors, in almost all states, earn the same, and, in some states, prosecutors have a higher income.
Each state territory is divided into judicial districts named comarcas, which are composed of one or more municipalities. The 27 Courts of Justice have their headquarters in the capital of each state and have jurisdiction only over their State territories. The Federal District only presents the federal-level judicial branch. Each comarca has at least one trial court, a court of first instance. Each court of first instance has a law judge and a substitute judge. The judge decides alone in all civil cases and in most criminal cases. Only intentional crimes against life are judged by jury. The judges of the courts are nominated after a selection process. There are specialized courts of first instance for family litigation or bankruptcy in some comarcas. Judgments from these district courts can be the subject of judicial review following appeals to the courts of second instance.
Courts of Justice
The highest court of a state judicial system is its court of second instance, the Courts of Justice. In each Brazilian state there is one Court of Justice (Tribunal de Justiça in Portuguese). Courts of Justice are courts of appeal, meaning they can review any decisions taken by the trial courts, and have the final word on decisions at state level, though their decisions may be overturned by the federal courts. Some states, such as São Paulo and Minas Gerais, used to have a Court of Appeals (Tribunal de Alçada in Portuguese) which had different jurisdiction. But the 45th Constitutional Amendment to the Brazilian Constitution,[8] in its article four, decreed their extinction in order to simplify the second instance structure.
Second instance judgments are usually made by three judges, called desembargadores. These Courts are divided into civil chambers, which judge civil cases, and criminal chambers. Judges of the Courts of Justice overview one another. A Court can expel any judge who has displayed unethical behavior.
The five regional Federal Courts have jurisdiction over circuits of several states and tend to be headquartered in the largest city of their territory. The regional courts are:
The Regional Federal Court of the 3rd Region has jurisdiction over two States: São Paulo and Mato Grosso do Sul, with headquarters in São Paulo, São Paulo.
There are two national superior courts making up the Supreme Court, which grant writs of certiorari in civil and criminal cases: the Superior Court of Justice (Superior Tribunal de Justiça in Portuguese) or STJ and the Supreme Federal Court (Supremo Tribunal Federal in Portuguese) or STF, the highest Brazilian court (decides issues concerning offences to the Brazilian Constitution).
The STJ is the Brazilian highest court in non-constitutional issues and grants a Special Appeal (Recurso Especial in Portuguese) when a judgement of a court of second instance offends a federal statute disposition or when two or more second instance courts make different rulings on the same federal statute. There are parallel courts for labor law, electoral law and military law.
The STF grants Extraordinary Appeals (Recurso Extraordinário in Portuguese) when judgements of second instance courts violate the constitution. The STF is the last instance for the writ of habeas corpus and for reviews of judgments from the STJ.
The superior courts do not analyze any factual questions in their judgments, but only the application of the law and the constitution. Facts and evidences are judged by the courts of second instance, except in specific cases such as writs of habeas corpus.
Edwin Montefiore Borchard. Guide to the law and legal literature of Argentina, Brazil and Chile. Law Library of Congress. Government Printing Office. Washington. 1917. Internet Archive
