The Brazilian legal system has as its primary normative source the Federal Constitution of 1988, which establishes the fundamental foundations and objectives of the Republic, sets forth an extensive list of fundamental rights and guarantees, enumerates social rights, enunciates several principles to be applied by those who create and apply the law, and delineates the powers of the State.
One of the main characteristics of the Brazilian Constitution is that it is extremely detailed, comprising approximately 400 articles. Moreover, although the process for amending the Constitution is quite rigid, from the time of its promulgation until 2025, 138 amendments have already been enacted, substantially altering its content. The need to amend the Constitution stems precisely from its level of detail and breadth, which make it necessary, over the years, to modify its provisions.
The 1988 Constitution is the foundation of the entire legal system, and all other legal norms must conform to it. The Constitution itself provides for mechanisms of constitutional review, aimed at preventing other norms from violating its provisions. The Judiciary is the branch responsible for exercising constitutional review in both diffuse and concentrated forms. Diffuse review is carried out by judges and courts individually in each specific case, while concentrated review is conducted directly by the Federal Supreme Court (STF), mainly through the adjudication of Direct Actions of Unconstitutionality (ADIs), whose effects are erga omnes.
The Constitution contains a series of fundamental rights and guarantees that are considered entrenched clauses, meaning they cannot be amended even by constitutional amendments. Article 5 of the 1988 Constitution contains 79 items listing various fundamental rights and guarantees, among which the following stand out: (i) equality between men and women; (ii) the principle of legality; (iii) freedom of thought; (iv) freedom of religion; (v) freedom of expression and of intellectual, artistic, scientific, and communicative activities; (vi) the inviolability of privacy and private life; (vii) freedom of movement within the national territory; (viii) the guarantee of the right to property, which must fulfill its social function; and (ix) the non-retroactivity of criminal law, among many others.
The Constitution also addresses nationality, distinguishing the situations in which a person is considered a native-born Brazilian or a naturalized Brazilian. It regulates political rights, establishing that voter registration and voting are mandatory.
With regard to the organization of the State, the Constitution adopts a federal model, providing for the division of powers among the Federal Union, the States, the Federal District, and the Municipalities, all of which are autonomous and have their competences defined in the constitutional text itself (in some cases, with concurrent powers, meaning matters that may be regulated by more than one level of government). The division of the Republic under a federal system is of enormous relevance, since the Brazilian federation cannot be abolished even by a constitutional amendment. Although the Constitution has adopted a model of Cooperative Federalism among the entities, in practice a certain imbalance has been observed, with problems such as the centralization of taxing powers in the Federal Union, fiscal imbalances among the States, and tax competition among the entities.
By adopting a model of separation of powers, the Federal Constitution divides the functions of the State among the Executive, Legislative, and Judicial branches, each with its specific attributions. The Union, the States, and the Federal District each have their own executive, legislative, and judicial branches, whereas the Municipalities have only local executive and legislative branches.
As in other countries that adopt the separation of powers, administrative functions fall under the competence of the Executive Branch, whose actions must always observe the powers defined in the Federal Constitution and in the laws. Brazil adopts a model of coalition presidentialism, in which the President concentrates the roles of Head of State and Head of Government.
Although the Executive Branch has the primary function of administering the State, the Constitution provides, in cases of relevance and urgency, for the possibility that the President of the Republic may issue Provisional Measures, which have the force of law upon publication and must be submitted to the National Congress for approval within a time frame established by the Constitution. Since the creation of Provisional Measures, their use has often occurred abusively, outside situations of relevance and urgency, creating an imbalance in the separation of powers, insofar as the Executive Branch ends up exercising a function that is typical of the Legislative Branch.
The Legislative Branch is primarily responsible for enacting laws and for amending the Constitution itself, a function entrusted to the National Congress at the federal level. States and Municipalities also have their own Legislative Branches, responsible for passing laws within their respective spheres. Some matters submitted to legislative deliberation are of exclusive initiative of the Executive Branch, such as budgetary laws, which are extremely important instruments of public management in the Brazilian legal system. Although certain matters are of exclusive executive initiative, nothing prevents legislatures from amending the content of the proposals submitted to them, since the democratic system always requires parliamentary intervention in the approval of Brazilian laws.
The Judiciary plays the role of adjudicating disputes among citizens, companies, and/or the public authorities, applying the Constitution and the law to specific cases and thereby resolving the conflicts brought before it. The Federal Supreme Court (STF) is the highest body of the Judiciary and is primarily responsible for safeguarding the Constitution. Due to numerous factors, such as the system of precedents and the fact that the Constitution is extremely analytical and detailed on countless matters, in recent years there have been numerous criticisms of the Judiciary for exceeding its primary function of applying legal norms to the conflicts of interests submitted to it. It is quite common to see situations in which the STF ends up creating rules that go beyond the dispute submitted to its review, or refrains from applying laws enacted by the Legislative Branch on the basis of constitutional principles, or even exercises investigative functions that would not fall within its primary competence. Many refer to this movement as “judicial activism.”
The Constitution also governs the National Tax System, addressing in an extremely detailed manner the taxing powers of all the entities of the Federation, constitutional principles, and the numerous types of taxes. This chapter of the Constitution is extremely dense, which has made the Brazilian tax system internationally known for its complexity. In this regard, it is important to note that Brazil has undergone numerous tax reforms in recent years aimed at simplifying consumption taxation and increasing taxation on income, especially for higher-income groups.
The Constitution regulates Brazil’s economic order, setting forth principles such as private property, the social function of property, free competition, consumer protection, the reduction of social and regional inequalities, and the pursuit of full employment. The Constitution makes clear its intention to allocate the exercise of economic activity primarily to the private sector, providing that State involvement is only permitted when necessary to meet the imperatives of national security or a relevant collective interest, as defined by law. Although economic activity is primarily carried out by the private sector, the Constitution allows for State intervention in the economic domain for the purpose of regulating, supervising, promoting, and planning the activities of economic agents. With regard to the regulation of the economic order, the 1988 Constitution also provides that the law must govern foreign capital investments based on the national interest, encourage reinvestment, and regulate the remittance of profits.
Finally, it should be noted that the Brazilian legal system is essentially based on the civil law tradition, prioritizing legislation as the primary source of law. The Brazilian legal order systematizes its norms through Codes, such as the Civil Code, the Code of Civil Procedure, the Penal Code, and the National Tax Code, among others. Nevertheless, the Brazilian legal system has incorporated certain characteristics traditionally associated with the common law, by adopting a system of precedents. This can be seen, for example, in cases in which the Federal Supreme Court decides matters under the General Repercussion regime and the Superior Court of Justice (STJ) under the Repetitive Appeals regime, making their rulings binding on other judicial bodies, as well as on the Executive and Legislative branches.
Author: Daniel Monteiro Gelcer
Gaia Silva Gaede Advogados
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Internet: www.gsga.com.br