Lawyers, Guns, and Money
When Americans discuss Brazilian politics, there are a few major topics that tend to come up. Lately, we tend to hear a lot about the World Cup, but economic inequality and political corruption are also common sources of debate. Less topical but still of utmost importance, however, is the Brazilian judicial system.
To be fair, the judiciary itself doesn’t exactly scream out to the casual onlooker as a sexy topic. There isn’t the same saliency among academic circles as with issues of income inequality, and there sure as heck isn’t the same juiciness of a good ol’ corruption scandal. But a lack of sexiness, so to speak, shouldn't, at the same time, deter us from a field of inquiry that arguably plays a fundamental role in both issues of inequality and corruption.
Indeed, when people do mention the Brazilian courts system, inequality and corruption are among the first topics to come up. How could they not, when considering this startling statistic: the average legal case in Brazil takes eight full years to complete (compared to 250 days in the United States). The Brazilian system is nearly-notorious for its arcane system of rules with many loopholes for defendants—as American University Professor Matthew Taylor puts it “the system is set up to leave things unresolved.”
Critics argue that with such a slow and inefficient justice system, access to justice is inevitably restrained. As a result, a lackadaisacal culture, in which wrongdoers are able to go unpunished, develops, and this may help to explain the high number of instances of police violence and brutality in Brazil. The Nascimento case, in which Brazilian police officers murdered Paulo Nascimento upon arrest, is one of the most recent examples of this trend.
Yet, there’s another side to Brazil’s judicial troubles, summarized in one glaring statistic: every year, the Brazilian Supreme Court, known officially as the Supremo Tribunal Federal (STF), decides over 100,000 cases. Compare that to the approximately 100-300 cases decided by the US Supreme Court in that same time frame, and the excessive inefficiencies in Brazil's highest court become readily apparent.
So, where does this distressing figure come from?
One major problem is that the STF often hears multiple cases with the same grievance or problem. Unlike other judicial systems that have a system of stare decisis, whereby courts adhere to past precedents when issuing decisions (like in the United States and most Western nations), Brazilian courts are often inundated with highly similar cases, each of which are granted their own individual trial. Only since 2004, with the 45th amendment to the Brazil’s 1988 Constitution, did the government begin to address this problem through a new system known as súmula vinculante, allowing for some precedents to be passed down in specific cases emerging from the STF (pending certain restrictions, of course).
Interestingly, however, another large part of the problem lies in the Brazilian culture surrounding litigation. Unlike in the United States, there is not a salient precedent in Brazil for arbitration, conciliation, or other non-judicial forms of resolving a legal problem. Indeed, only about 34.5% of legal suits in the country reached an agreement through conciliation, compared to over 95% in the United States. Instead, most cases in Brazil move to the costly and time-consuming trial phase.
In addition, cases brought to courts are sometimes frivolous in nature. Brazilian Federal Judge Fabio Cesar dos Santos Oliveira noted in a recent event on campus hosted by the Center for Brazilian Studies that many cases that are brought into the judicial system have no legal basis whatsoever, and instead are suing for an apology or to seemingly make a point. These individuals believe that the decision of a court would make their complaint more legitimate, and in so doing, the entire court system is delegitimized.
These insights into the manifestations of Brazilian culture in the justice system are intriguing; yet, they also make things quite difficult for those in Brazil who would like to see fundamental reform to the way the courts go about their business. Somehow, the state needs to generate a set of common expectations for how its citizens currently think about the courts, or Brazil will continue to suffer through ever more corruption, inequality, violence, and lost opportunity.