Legal Philosophy in Brazil

Introduction

Legal philosophy in Brazil (Filosofia do Direito) has evolved from its colonial roots in Portuguese scholasticism to a vibrant and pluralistic field engaging with global jurisprudential currents. Brazilian legal philosophy has been shaped by Portuguese legal thought, German idealism, French sociological jurisprudence, and American pragmatism. The post-1988 constitutional period has seen a flourishing of neoconstitutionalism (neoconstitucionalismo) and a growing engagement with critical legal studies and analytical jurisprudence.

Historical Development

Colonial and Imperial Periods

During the colonial period, Portuguese legal philosophy dominated Brazilian thought, particularly the scholastic tradition of Thomas Aquinas and the late scholasticism of Francisco Suárez and Luis de Molina. The 1824 Imperial Constitution and the Commercial Code of 1850 reflected the influence of liberal legal thought and the exegetical school of statutory interpretation.

The Recife School

The Recife School (Escola do Recife), led by Tobias Barreto (1839-1889) and Silvio Romero (1851-1914), marked the beginning of a distinctive Brazilian legal philosophy. Barreto, influenced by German thought — particularly Rudolf von Ihering’s sociological jurisprudence and the evolutionary theory of Ernst Haeckel — rejected Portuguese scholasticism and advocated for a scientific approach to law. The Recife School introduced Germanism (germanismo) as an alternative to the dominant French influence in Brazilian legal thought.

20th Century Developments

The 20th century saw the reception of Hans Kelsen’s pure theory of law (teoria pura do direito), which became the dominant jurisprudential framework in Brazilian legal education. Kelsen’s influence is evident in the work of major Brazilian jurists, including Pinto Ferreira and Joaquim de Arruda Falcão.

Sociological jurisprudence and the free law movement (direito livre) also found adherents, particularly among scholars critical of legal formalism. The work of Pontes de Miranda (1892-1979) — one of Brazil’s most prolific legal scholars — synthesized Kelsenian normativism with sociological analysis in his monumental Tratado de Direito Privado (60 volumes).

Contemporary Currents

Neoconstitutionalism

The 1988 Constitution catalyzed the development of neoconstitutionalism (neoconstitucionalismo), a jurisprudential approach emphasizing: (i) the normative force of constitutional principles; (ii) the direct application of fundamental rights; (iii) proportionality and balancing as interpretive methods; and (iv) the role of courts in protecting rights.

Influenced by the work of Robert Alexy, Ronald Dworkin, and German constitutional theory, Brazilian neoconstitutionalism has been developed by scholars such as Luís Roberto Barroso (currently an STF justice), Daniel Sarmento, Cláudio Pereira de Souza Neto, and Ana Paula de Barcellos. Barroso’s work on Curso de Direito Constitucional Contemporâneo and his distinction between principles and rules in constitutional interpretation has been particularly influential.

Critical Legal Studies

Brazil has a vibrant tradition of critical legal thought (pensamento jurídico crítico), influenced by Marxist legal theory and the Critical Legal Studies movement. The Law and Marxism (Direito e Marxismo) research group and the work of scholars such as Miracy Gustin and José Geraldo de Sousa Júnior have developed critical approaches to legal education, legal pluralism, and the role of law in social transformation.

Roberto Mangabeira Unger

Roberto Mangabeira Unger (born 1947) is one of Brazil’s most internationally recognized legal philosophers. A professor at Harvard Law School, Unger has developed a comprehensive critique of classical liberalism and orthodox Marxism, advancing a theory of transformative politics and flexible legal institutions. His work, including Law in Modern Society (1976) and The Critical Legal Studies Movement (1983), has been foundational for the Critical Legal Studies movement.

Unger’s thought emphasizes: (i) the plasticity of social institutions; (ii) the critique of false necessity; (iii) the empowerment of individuals and communities; and (iv) the experimentalist approach to legal design. Unger has also been active in Brazilian politics, serving as Minister of Strategic Affairs (2015-2016).

Analytical Legal Philosophy

A growing body of Brazilian scholarship engages with analytical jurisprudence, including the work of H.L.A. Hart, Joseph Raz, and contemporary debates about the nature of law. The Brazilian Society of Analytical Philosophy and research groups at the University of São Paulo (USP) and the Federal University of Rio Grande do Sul (UFRGS) have advanced discussion of legal positivism, the separability thesis, and the concept of legal authority.

Legal Education and Its Critics

Brazilian legal education has been the subject of critical reflection. The OAB Examination, which regulates entry to the legal profession, has been analyzed for its effects on legal education quality. Scholars have criticized the dominance of the traditional lecture format, the gap between academic legal philosophy and professional practice, and the need for interdisciplinary legal education.

Key Debates

Positivism vs. Post-Positivism

The debate between legal positivism and post-positivism or moralized jurisprudence is central to contemporary Brazilian legal philosophy. The STF’s frequent invocation of moral principles and proportionality in constitutional adjudication has given practical significance to this theoretical debate.

Legal Pluralism

Brazilian legal philosophers have addressed legal pluralism (pluralismo jurídico), particularly in the context of indigenous legal systems, quilombola communities, and informal urban legal orders. The Constitution’s recognition of indigenous customary law has given constitutional salience to pluralist theories.

Conclusion

Brazilian legal philosophy is a dynamic and diverse field, engaging with global jurisprudential movements while developing distinctive approaches rooted in Brazilian constitutional experience and social reality. The post-1988 period has been particularly fertile, with neoconstitutionalism providing a framework for understanding the transformative role of constitutional law. The continuing development of critical, analytical, and interdisciplinary approaches promises to enrich Brazilian legal philosophy in the years ahead.