Doing Legal Research in Brazil

By Edilenice Passos

Published February 2005

Edilenice Passos is a fully trained librarian and she earned her Master's Degree in 1992. She currently works at the Research Service of the Brazilian Senate as the head of the sector in charge of gathering background information for the consultants. Edilenice has written five books and published several articles. In addition to her regular duties, she is the Infolegis discussion list moderator. This list connects librarians, lawyers, and other professionals in order to share legal information. Mrs. Passos is also responsible for a site on the web (http://www.infolegis.com.br/), developed to help Brazilian Law librarians to find foreign legislation, as well as to help people from other countries find information on Brazilian legislation.

Update to an article previously published on LLRX.com on September 2, 2002
<http://www.llrx.com/features/brazil2002.htm>

 

Table of Contents

1.      INTRODUCTION

1.1.   General Data about Brazil

1.2.  Nationality

1.3.  Separation of Powers

1.4.  Brazilian Judicial System

1.4.1.      Control of Constitutionality

1.5.  Brazilian Legislative System

1.5.1.      The Making of Laws

1.5.2.     Legislative Systems in the States and Municipalities

2.      BRAZILIAN PRIMARY LEGAL RESOURCES

2.1.  Diário Oficial da União [Official Federal Gazette]

2.2.  Diários oficiais estaduais [Official Gazettes of the States]

2.2.1.     Bahia

2.2.2.     Ceará

2.2.3.     Espírito Santo

2.2.4.     Mato Grosso

2.2.5.     Minas Gerais

2.2.6.     Pará

2.2.7.     Paraná

2.2.8.     Pernambuco

2.2.9.     Rio Grande do Norte

2.2.10.Rio Grande do Sul

2.2.11. Santa Catarina

2.2.12. São Paulo

2.3.  Diário de Justiça [Judiciary Gazette]

3.      BRAZILIAN INSTITUTIONS DEALING WITH LEGAL INFORMATION

3.1.  Libraries

3.2.  Law Schools

3.2.1.     Undergraduate Courses

3.2.2.     Graduate Courses

3.3.  Law Societies and Bar Associations

3.3.1.     Ordem dos Advogados do Brasil [Brazilian Bar Association]

3.3.2.     Associations of Lawyers, Judges, and Prosecutors

3.4.  Brazilian Legal Publishing Houses

4.      BRAZILIAN LEGAL RESEARCH

4.1.  Miscellaneous

4.1.1.      Non-governmental sites

4.1.2.     Government sites

4.2.  Codes

4.2.1.     Código Brasileiro de Aeronáutica [Brazilian Code of Aeronautics]

4.2.2.     Código Brasileiro de Telecomunicações [Brazilian Code of Telecommunications]

4.2.3.     Código Civil [Civil Code]

4.2.3.1.         New Civil Code

4.2.4.     Código Comercial

4.2.5.     Código das Aguas [Water Code]

4.2.6.     Código de Caça [Game Code] (Fauna Protection)

4.2.7.     Código de Conduta de Alta Administração Federal [Code of Higher Conduct of Higher Government Officials]

4.2.8.     Código de Mineração (Código de Minas) [Code of Mining - Code of Mines]

4.2.9.     Código de Processo Civil [Code of Civil Procedure]

4.2.10.Código de Processo Penal [Code of Criminal Procedure]

4.2.11. Código de Propriedade Industrial [Industrial Property Code]

4.2.12. Código de Proteção e Defesa do Consumidor [Consumer Protection Code]

4.2.13. Código de Trânsito Brasileiro [Brazilian Traffic Code]

4.2.14. Código Eleitoral [Electoral Code]

4.2.15. Código Forestal [Forest Code]

4.2.16. Código Penal [Criminal Code]

4.2.17. Código Tributário Nacional [National Revenue and Taxation Code]

4.2.18. Consolidação das Leis do Trabalho (CLT) [Consolidation of Labor Laws]

4.2.19. Estatuto da Criança e do Adolescente [Child and Adolescent Statute]

4.3.  Topic Search

4.3.1.     Science and Technology

4.3.2.     Foreign Trade

4.3.3.     Children and Adolescents

4.3.4.     Culture

4.3.5.     Consumer Rights

4.3.6.     Education

4.3.7.     Elections

4.3.8.     Environment

4.3.9.     Mercosur

4.3.10.Social Security

4.3.11. Radio Broadcasting

4.3.12. Land Reform

4.3.13. Telecommunications

4.3.14. Traffic

4.3.15. Taxation

5.      BIBLIOGRAPHIC REFERENCES AND CITATIONS

5.1.  Bibliographic References

5.1.1.      Bibliographic References for Books

5.1.2.     Bibliographic References for Articles in Periodicals

5.1.3.     Bibliographic References for Joint Decisions, Judgments and Sentences by Courts and Tribunals

5.1.4.     Bibliographic References for Codes

5.1.5.     Bibliographic References for Laws, Decrees, Directives, etc.

5.2.  Citations and Quotations

5.2.1.     Citation Format Rules

5.2.2.     Examples

5.2.2.1.         Citation of Federal Constitution

5.2.2.2.         Code Citation

5.2.2.3.         Legal Citation

5.2.2.4.         Citation Sentences from Books and Periodicals

6.      ABBREVIATIONS AND POPULAR NAMES OF LEGAL RULES

7.      TRANSLATED BRAZILIAN LAW

1 INTRODUCTION

The Brazilian legal system shows a prolific production of juridical information, either descriptive (doctrine), or mostly normative (legislation), as if it were possible to improve or solve the problems of society by means of an increasing number of laws. It is not a surprise that many such laws are forgotten or simply ignored.

The proliferation of normative acts, of higher or lower hierarchy, eventually causes total chaos, for this big mass of juridical documents hampers the work of lawyers, researchers, and of the very citizens, who are ruled by Brazilian laws. As early as 1969, Arnoldo Wald already alerted that "the true legislative labyrinth created as a result of an inflation of statutes passed in recent years has turned the ruling Brazilian law into a patchwork, in which the mere legislative updating becomes a daily torture for a lawyer and a judge who are searching for the rules applicable to a specific subject, from among acts, supplementary acts, institutional acts, decree-laws, and other normative acts". It is right to state that this situation remains unchanged in 2001.

The excessive number of laws is not the only big problem in the corpus of Brazilian laws. The implicit revocation of rules, which uses only the expression All provisions to the contrary are hereby revoked (Revogam-se as disposições em contrário), puzzles anybody who tries to identify which rules are in force.

In an attempt to modify this panorama, the 1988 Federal Constitution, in the sole paragraph of article 59, foresaw the need to issue standards for the preparation, drafting, amendment, and consolidation of laws. To fulfill this constitutional provision, the National Congress passed Supplementary Law no. 95, of February 26, 1998, which provides for the preparation, drafting, amendment, and consolidation of laws, as set forth by the sole paragraph of article 59 of the Federal Constitution, and establishes rules for the consolidation of the normative acts that it refers to.

The Legislative Consolidation Program, headed by the Executive Branch, aims at the consolidation of rules which have an identical, analogous, or related object, so as to eliminate possible divergences, conflicts, or repetitions, and, therefore, convey unity, simplicity, and coherence to the body of Brazilian federal legislation.

With a view to implementing this process in the sphere of the Executive Branch, the Federal Government issued Decree no. 4,176, of March 28, 2002, establishing, among other provisions, the rules for the consolidation activities.

Ives Gandra Filho, now a Justice in the Higher Court of Labor, who coordinated the committee created by the Executive Branch to implement the consolidation of laws, explains that "in the global context, the consolidation of federal legislation will have as an end-product the compression of approximately 10,000 laws of a general character into about 120 statutes; this will undoubtedly represent a monumental work of simplification of our legal system, thus enabling an easy and safe access to the laws in force."

As a consequence of this big mass of juridical documents, several publications have already appeared to try to organize, compile, or interpret the legislation of Brazil, thus making the Brazilian editorial market of legal works a very profitable and prolific one. Many new publications do not go beyond the first few issues, but some commercial publishers and their publications are traditional, like Revista Forense, published by Editora Forense and in circulation without interruption since 1904, and Revista dos Tribunais, published by a publishing house under the same name, in circulation since 1912.

With the advent of the Internet, publishing houses have found a new mode to offer their services. This is so true that lawyers are increasingly connected to the virtual world, thus becoming the most frequent professional category in the Net. At an incredible pace, juridical sites have appeared that offer databases containing doctrine, full texts of rules and former court rules, a lawsuit tracking system, legal news, and information about public competitive examinations.

Reference Works:

MARTINS FILHO, Ives Gandra da Silva. Consolidação da legislação federal. Revista do Ministério Público do Trabalho, São Paulo, v. 8, n. 16, p. 86-97, set. 1998.

WALD, Arnoldo. A elaboração e revisão dos projetos de códigos. Revista de Direito da Procuradoria Geral do Estado da Guanabara, n. 21, p. 166-189, 1969.

1.1 General Data about Brazil

National Capital: Brasília (DF)
Population: 178,742,860
National language: Portuguese
Form of government: Federative Republic
System of Government: Presidentialism

Republic is the form of government of the Brazilian State, with representatives elected to serve temporary terms of office by means of direct periodical elections. It is a decentralized Federative state, characterized by the indissolubility of the Union.

Presidentialism is the system of government. The Chief of State and Head of Government is the President of the Republic, who must be Brazilian by birth, at least 35 years old, and fulfill the requirements which are mandatory for any representative of the people: electoral domicile, inclusion in the voters' list, membership in a political party, full exercise of political rights, and literacy. The Vice-President, who must also fulfill the above-mentioned requirements, replaces the President on a temporary basis in the event of impediment, and succeeds him in the event of vacancy. In the event of impediment of the Vice-President, the following will be called successively to take office: (i) the President of the Chamber of Deputies, (ii) the President of the Federal Senate, and (iii) the President of the Supreme Federal Court. However, in the event of simultaneous vacancies, the acting President shall organize new elections, to be held within 90 (ninety) days after the occurrence of the last vacancy. Nevertheless, if the vacancies occur during the last two years of the President's term of office, the National Congress shall hold indirect elections for such offices within 30 (thirty) days after the occurrence of the last vacancy. In any of the cases, the purpose shall always be that of completing the term of office of the predecessors.

In the Brazilian system, the President's term of office is 4 (four) years, reelection being permitted only once. The election of the President and of the Vice-President shall take place simultaneously on the first Sunday of October, in the first round, and on the last Sunday of October, in the second round, if no candidate has obtained the absolute majority of valid votes in the first round of voting.

Democracy is the political system of the Federative Republic of Brazil. The executive, the legislative, and the judicial branches, independent and harmonious among themselves, integrate the Union.

1.2 Nationality

A Brazilian national (article 12 of the Federal Constitution) can be native-born or naturalized. As regards nationality, Brazil adopts primarily jus solis, but it also accepts, in several circumstances, jus sanguinis in the first degree.

Therefore, the following are native-born Brazilians:

1.     those born in the Federative Republic of Brazil, even if of foreign parents, provided that they are not at the service of their country;

2.    those born abroad, of a Brazilian father or a Brazilian mother, provided that either of them is at the service of the Federative Republic of Brazil; and

3.    those born abroad, of a Brazilian father or a Brazilian mother, provided that they come to reside in the Federative Republic of Brazil and opt for the Brazilian nationality at any time;

The following are naturalized Brazilians, provided that they apply for it:

1.     foreigners originating from Portuguese-speaking countries, resident in the Federative Republic of Brazil for at least one uninterrupted year and having good moral repute;

2.    foreigners of any nationality, resident in the Federative Republic of Brazil for over fifteen uninterrupted years and without criminal conviction.

1.3 Separation of Powers

In the Brazilian legal system, the supreme rule is the Federal Constitution. The current one was promulgated on October 5, 1998, and is characterized by its written rigid form. However, the states have powers to organize themselves and to be ruled by their own Constitutions and by laws that they may adopt. Their autonomy is limited by the principles established in the Federal Constitution. The autonomy of the States of the Federation is restricted, as are all powers that are explicitly or implicitly not forbidden by the Federal Constitution.

There is a legal system of a national scope, effective all over the country, and there are legal systems of a state scope, exclusive of each State of the Federation. However, in both cases the supremacy of the Federal Constitution is undoubtedly an imperative, indisputable matter.

Municipalities, eadem ratione, also enjoy restricted autonomies. Their legislation must also follow the dictates of the Constitution of the State to which they belong, and, consequently, those of the Federal Constitution itself.

Reference Work

SECCO, Orlando de Almeida. Introdução ao estudo do Direito. 5. ed. Rio de Janeiro : Lumen Juris, 1999. 253p.

1.4 Brazilian Judicial System

Under the terms of article 92 of the Federal Constitution, the following are the bodies of the Brazilian Judicial Branch:

• the Supreme Federal Court
• the Higher Court of Justice
• the Federal Regional Courts and Federal Judges
• the Labor Courts and Judges
• the Electoral Courts and Judges
• the Military Courts and Judges
• the Courts and Judges of the States and of the Federal District

Among the bodies of the Judicial Branch, special emphasis should be given to the Supreme Federal Court, the Higher Court of Justice, and the Higher Courts, since their jurisdiction covers the entire territory.

The functions essential to Justice are also autonomously carried out by the Office of the Prosecutors for the Public Interest of the Union and of the States¹, by the Office of the Solicitor-General of the Union, and by the Office of the Public Legal Defender.

The Judicial Branch is empowered with administrative and financial autonomy. The judges in the various courts enjoy the guarantees of life tenure, irremovability, and irreducibility of compensation, as provided by article 95 of the constitutional text. The same guarantees are conferred to the Prosecutors for the Public Interest, pursuant to item I of paragraph 5 of article 128.

The organization, composition, and competence of the Courts of the States is defined according to the Federal Constitution, the State Constitutions, and the respective state laws on judicial organization.

Brazilian Justice has always been considered slow and too bureaucratic. Judges, members of the Office of the Prosecutors for the Public Interest, and lawyers have always pursued swifter justice. The first step in the pursuit of tools to prevent Justice from being overburdened was the enactment of Act no. 7,244, of November 7, 1984, which set forth rules for the establishment and operation of Small Claims Courts - such courts would take charge of actions not exceeding 20 minimum monthly salaries (that is, US$ 1,225.00, at that time).

The 1988 Federal Constitution, in its article 98, item I, provided for the creation of Special Courts, filled by judges, or by judges and lay judges, with powers for conciliation, judgment, and execution of civil suits of lesser complexity and criminal offenses of lower offensive potential, by oral and summary proceedings, allowing, in the cases established in law, the settlement and judgment of appeals by panels of judges of first instance.

This constitutional provision was regulated by the National Congress by means of the enactment of Act no. 9,099, of September 26, 1995. Such Special Courts are an adequate solution for the settlement of claims of a small economic value and too low complexity for the standard procedures of a lawsuit. It is worth noting that swift, free-of-charge settlement of claims constitutes a good response of the State to the demand for Justice.

1.4.1 Control of Constitutionality

The control of the constitutionality of laws is exercised either in a concentrated or in a diffuse manner.

1. Concentrated control is effected and judged, in the first instance, by the Supreme Federal Court, by means of two types of actions: Direct Actions of Unconstitutionality (ADIN) and Declaratory Actions of Constitutionality (ADECON). ADINs may only be proposed by the President of the Republic; the Directing Board of the Chamber of Deputies, of the Federal Senate, or of State Legislative Assemblies; a State Governor; the Federal Prosecutor-General; a political party represented in the National Congress; the Federal Council of OAB [Brazilian Bar Association], or a professional association or confederation of labor unions of a nationwide nature.

According to the doctrine and