Read the exciting second part of our NLR exchange between Professors Clune and Bucci! Here Professor Bucci explains a Brazilian perspective on how NLR could approach law and public policy, in a generative exchange:
Law and Public Policy in Brazil and the United States: A North-South Dialogue
Maria Paula Dallari Bucci[1]
1. The Law and Public Policy Approach in Brazil
The Law and Public Policy (LPP) approach—which brought me to William Clune’s work and eventually into dialogue with him[2]—has developed to face the needs presented by the Brazilian Constitution of 1988. After the process of re-democratization, the Constitution required a new approach to enforcing the rights it guaranteed. Like other Latin American countries, in Brazil there is a weak tradition of successfully enforcing those rights despite the presence of a large state apparatus.[3] The civil society movement that led to the new, democratic Constitution inspired concerted action to remedy this shortcoming. This is the realm of public policy: designed to face complex and large-scale problems.
As a Professor of Public Law at the University of São Paulo Law School, I searched for strategies to address the complexity of these questions. Both the problems and the solutions to ineffective enforcement of constitutional rights are multidimensional; as such, they require a multidisciplinary approach. In my book on the fundamentals of Law and Public Policy,[4] I proposed crafting a series of frameworks to divide these problems into distinct analytical questions. This approach aligns with that academic fields that regularly analyze public policy, such as political science and policy analysis.[5]
The diverse perspectives to public policy as a scholarly topic raise challenges for delving deeper into it. To address these difficulties, I proposed the “LPP framework”[6] as an analytical framework that could be applied to different areas of public policy. I partnered with students and fellow faculty to test the utility of my proposed framework in a variety of case studies.[7] One of these, in the field of urban planning, deals with the decisions about the street as a public good.[8] Who decides, and by what procedures, how streets shall be divided? Can legal rules organize the participation of conflicting interest groups, such as ridesharing apps (e.g., Uber) and public transport users, for a better collective distribution of the limited space in street lanes? Another case study addressed housing policy to analyze how legal obstacles to a policy’s efficacy from the perspective of poorer communities had consequences for the city as a whole.[9] How can the representation of dispossessed persons’ interests be modeled to avoid their exclusion from the decision-making process, for example in cases of gentrification? A third example is the organization of sanitation policies. In Brazil sanitation is a shared responsibility among the states and federal government. The LPP framework enabled scholars to map the legal conformation of the arenas and actors in dispute.[10] In all these cases, the scholars found the policies arrived at some form of consensus decision, not entirely in favor of one or another of the conflicting interests. This expresses a compromise through consensus building and a path for better implementation that is one of the hallmarks of the “Law and Public Policy (LPP) approach.”
The importance of law to public policies is undisputed, and no one disagrees that policies can shape and organize how the law is applied. The connections between the two areas are obvious. Despite this, the literature exploring the theoretical basis for the combination of these two subjects is surprisingly scarce. My literature review revealed that this scarcity is a fact worldwide, with one key exception.[11] I “discovered” seminal articles produced by William Clune in the 1980s and 1990s that address these questions. In Law and Public Policy: Map of an Area (1993), he explains the connection of the two areas on the grounds of legal realism:
This article is an essay about the meaning of “law and public policy” and the complicated relationship between these two ideas. There is hardly a term more common in government than “policy”- public policy, policy analysis, and so forth. Especially since the advent of legal realism, legal discourse relies extensively upon “policy arguments,” referring to something both powerful and peripheral to the meaning of text. Governments pass laws and use them to effectuate policies.[12]
In addition to Map of an Area, he also published A Political Model of Implementation and Implications of the Model for Public Policy, Research, and the Changing Roles of Law and Lawyers[13] (1983), and Legal Disintegration and a Theory of the State (1989), among others. Although written thirty years ago, their analysis has not been expanded upon by subsequent scholars. Clune’s work provides a sophisticated analysis that fills a gap in legal knowledge about public policies. I later learned that he prepared them for a course on Law and Public Policy at the La Follette School of Public Affairs. From this perspective they are unique because it is more common that experts from other areas write about law in their joint courses.
The only work that deals with Law and Public Policy at a similar level to Clune’s theoretical density is the late Swiss Professor Charles-Albert Morand’s Le Droit Neo Moderne des Politiques Publiques (The Neomodern Law of Public Policies).[14] A hypothesis for the lack of scholarship in this area may be the overcomplexity of the subject, referred to by some as “the labyrinth-law.”[15] Both Morand and Clune analyzed the relationship between law and public policy and proposed patterns of interactions between the two. These patterns consider the scenarios of the social state that are unique to each country’s context and history. Even when not combined with LPP, the social state remains a complex issue.
Clune’s works can be divided into two dimensions. The first is political. His articles are committed to a progressivist approach that fits well the needs of comprehension of political and legal movements towards social transformation (be it in the United States, in Brazil, or elsewhere). The second dimension is methodological. The selected articles contain a series of frameworks analytically refined to describe the actual implementation of public policies from a legal perspective.
After tracing a research path on LPP in Brazil,[16] the “discovery” of Clune’s work revealed new dimensions for analysis. With a team of Brazilian researchers, I translated some of them to be published in major Brazilian journals.[17]
The LPP approach combines public policy and legal analysis in the context of the construction of the social state. Despite the different strategies various countries have adopted to construct their social states (the Nordic welfare state, the corporate type adopted in Germany and France, or the liberal model, in the United States and UK, according to Esping-Andersen’s typology[18]), all are forms of regulated capitalism. The social state requires capable and structured state institutions. Institutionalized policies are its essential components. They have come under attack by authoritarian governments in Brazil and the United States (Bolsonaro and Trump) through strategies of disruption. However, the post-pandemic period may lead to the renewal of regulated capitalism or, in other words, to the return of the social state.
2. Public Policies in the Context of the “Ruling Constitution” in Brazil
The process of re-democratization in Brazil after 1985 led to the Constitution of 1988 (hereinafter “BC”),[19] similarly to the transformative constitutions pattern in the third wave of democracies that overcome authoritarian periods between 1970–2000 in Portugal, Spain, African countries in the post-colonial periods, Latin America, and Eastern Europe. Despite being a composite of different and sometimes opposing political trends, the BC has a “progressive side.” This was directly influenced by the model of the Portuguese Constitution emerging from the post-authoritarian period of 1976 and inspired by the work of some Portuguese scholars such as Vital Moreira and Joaquim Gomes Canotilho. The “Ruling Constitution” (Constituição dirigente),[20] the title of Canotilho’s book,[21] addresses the legislature’s omissions in the implementation of constitutionally binding norms. In addition, the Ruling Constitution ideology advocates the interpretation of rules and policies according to the Constitution, which was not part of Brazilian constitutional tradition at that time. The BC was adopted after the most participative constitutional process in Brazilian history. The Ruling Constitution’s landmark is that it places on the legal system the burden of promoting social welfare, despite political resistance.
The BC was shaped with an extensive and ambitious list of entitlements, in the three dimensions historically seen in European democracies:[22] a) civil and political rights (articles 5 and 14); b) social rights, directly linked to the labor world (minimum wage, unions, articles 7 and 8; social security, articles 194 and 195) and social, economic, and cultural rights, such as universal healthcare (articles 196–200) and education (articles 205–214); and c) the so-called rights of solidarity, such as housing and transportation (article 6), urban policy (articles 182 and 183), and environment (article 225), among others.
Despite the BC’s ambitions, there was concern the “inefficacy of law as an instrumental practice”[23] would hollow its normative purpose. This is a shortcoming that is also found in the constitutions of most Latin American countries. To face the historical lack of implementation, advocates and scholars envisioned three main strategies: a) the empowerment of courts and the justiciability of rights, breaking with the traditional formal law that considered rights on a limited basis as mere political declarations;[24] b) the mention of public policies, both in the text of the BC and in norms to be approved; c) the “open texture” of its norms—an expression that comes from German constitutional law, meaning provisions that claim to be completed by other norms, mainly executive—which leads to the framing of new public policies, to accomplish the goals and values presented in the BC.
The first strategy of empowering courts follows a pattern familiar to other developing countries embracing democracy at the time. In Brazilian scholarship, it is represented by Luis Roberto Barroso’s “effectivity doctrine”.[25] Later, Barroso was appointed a Justice of the Supremo Tribunal Federal (Brazilian Federal Supreme Court), and he pledged he would embrace a strong, transformative role for the judicial power. He called it an “enlightened” constitutional court.[26] Subsequent decisions by the Federal Supreme Court defending gay rights and condemning racism, regardless of the underlying legal provision,[27] provide examples of the Court’s enlightenment.
The BC enacts the second strategy by including a list of policies to be implemented:
The notion that the Constitution represents a plan to be implemented by political institutions is present in the various provisions that compel the ordinary legislator to create public policies. . . .[[28]] Therefore when the Brazilian Constitution expanded its areas of regulation to encompass public policies, it raised several issues typical of constituted powers to the constitutional level. The entrenchment of the interests of various political groups that led to an extensive text that regulates matters modifiable with each new government indicates one of the reasons why the constant approval of new constitutional amendments is required.[29]
After editing the Constitution, the challenge was to accomplish all of its promises. The entitlements demanded funding, political support, a particular type of management of public affairs, and a proper set of legal instruments. Implementing these policies demanded innovative legal thinking. The third strategy emerged to meet this challenge. Legislators, public administrators, interest groups, non-governmental organizations, and jurists joined together to produce new public policies to effectuate the norms expressed in the BC:
In this context of rampant social inequality, the lack of enforcement is particularly serious in the realm of equality rights. The Brazilian Constitution contains . . . several provisions that demand state action aiming at realizing substantive equality . . . . The realization of these provisions has been a serious challenge. Still, even though not immediately after 1988, at least since the turn of the century, legislation and public policies based on them have been enacted and put forward, such as a comprehensive affirmative action program for the inclusion of black and underprivileged students in Brazilian universities, specific legislation for dealing with violence against women, judicial decisions granting the right to same-sex civil unions, laws to foster the equality of persons with disabilities, among many others. [30]
Despite challenges, Brazil has shown progress in adopting the necessary public policies since adoption of the BC. For example, education policy shows consistent progress.[31] New policies have produced effective solutions and tangible results in improved scores on national evaluations. This is particularly notable given the fact that backward elites remain largely opposed to a strong public education system. Consistent progress has also been made in the area of public health. This can be attributed to Sistema Único de Saúde (“SUS”) (Unified Health System), a universal access system whose federal organization serves as a benchmark for other public services, including public assistance and public safety. Despite persistent underfunding, SUS proved itself a vital institution during the pandemic.
The bonds between law and politics can be considered the “primeval interdisciplinarity.” Analyzing them sheds light on how this articulation works at three different levels: a) the micro level, which describes the relations among individuals in a granular focus, regarding specific rules applied to the actors of a public policy; b) the meso level, which concerns the organization of the factors that provide unity to a particular legal-institutional arrangement; and c) the macro level, in which are located the conflicts between the main organized political forces that drive the fundamental decisions of public policy.
At the macro level, the social state is defined by the systematic prevalence of public policies that favor progressive goals. At the meso level, public policies can be defined as governmental action programs resulting from a legally regulated set of processes to coordinate public and private activities to achieve chosen goals.[32] At the micro level, the efforts must be oriented to improve each of the particular aspects of the public policy, including the legal ones. Capturing best practices that have succeeded in a better offer of public services that produce social welfare and political legitimacy, at all levels, is one task for LPP.
3. Connections Between the Transformative Constitution and New Legal Realism in Latin America and the United States
The Brazilian ruling Constitution movement is connected to the transformative constitutionalism that took place at the same time in other Latin American countries, such as Colombia and Bolivia. Despite different names, political compositions, and scholarly approaches, similar movements in developing countries can be combined under the big-tent of New Legal Realism (NLR) studies, based on the two essential components summarized by Huneeus & Klug:
(1) it steps beyond law’s self-description as neutral and self-contained so as to examine its relationship to social and political phenomena; and
(2) it employs the questions, theories, and methods of the social sciences to do so.[33]
The search for effective solutions to structural problems, attaching the capacity of political understanding to building well-designed legal instruments, based on the knowledge of empirical studies from previous experiences seems to be in dialogue with the origins of NLR in its original sense:
The old Legal Realists were a group of scholars who sought to pivot away from doctrinal analysis and legal formalism toward nudging legal scholars and lawyers to think about how social context affects the delivery of law on the ground. Their pragmatic, realistic approach considered politics, policy, and the law in action within and among communities, as well as actively wrestling with how real-world pressures beyond doctrine impact judicial decision making.[34]
The link between Brazilian and U.S. legal realism is more distant due to the relative position, in many senses, of the two countries. Moreover, the beginning of developmentalism stressed this imbalance in an ambiguous way by imposing U.S. institutional models on Latin American countries under the guise that such models were normatively better at fostering development:
Through the law and development movement of the 1960s and ‘70s, for example, well-funded US scholars spent stints of time in law schools throughout Africa and Latin America so as to sow US legal ideas and practices (Trubek and Galanter 1974). . . . [T]he typical characterization of Latin American law inherited from the law and development tradition, . . . highlighted the pathologies and sought to reform them in the image, always idealized, of US law.[35]
David Trubek and Marc Galanter describe this pattern in a famous autobiographical article,[36] and responses to their work further comment on the trend.[37] However, this is just one part (and maybe the smallest one) of the influence of developmental studies in Brazil. Developmentalism has been a melting pot for various trends akin to NLR. In Brazil as in Latin America, this movements encompasses “Law and Society scholarship, especially the use of empirical work for progressive legal ends (‘critical empiricism’), legal pluralism, the sociology of law and the legal profession; the Critical Legal Studies movement; critical perspectives on law and development (most recently, Law and the New Developmental State), and New Governance.”[38] Scholars have updated this perspective over time, but developmentalism (or neo-developmentalism) remains an important school of thought in the progressive field:
Although the death of the “law and development movement” was solemnly proclaimed four decades ago (Trubek and Galanter, 1974), this was clearly premature (Tamanaha, 1995). The relationship between law and socioeconomic development continues to stimulate various governmental projects, legislative reforms, judicial trainings, and academic debates. Particularly in Latin America, the movement is relevant for the transformation of legal education, professional lawyering, and developmental reforms (Steiner, 1971; Tamanaha, 1995; Dazalay and Garth, 2002; Perez-Perdomo, 2006).[39]
I agree with scholars who reject the idea of Latin American countries as mere receptors of theories of law produced in central countries. There is no doubt about the capacity of the region to frame its own solutions for its problems. Moreover, in present times there are reasons for diminishing the idealization of U.S. law; “the same pathologies that are always used to describe Latin American law exist there as well, as has become ever more painfully evident during the final chapter of the Trump administration.”[40]
Developmentalism is a trend of reformism. But sometimes reformism has been criticized in Latin America as if it were opposed to rights-based discourse. The United States’ influence created tension in relation to the enforcement of rights. This can be seen as a problem of dysfunctionality or a matter of political emancipation, depending on the perspective:
[Rodríguez Garavito[41]] pushed back against the typical characterization of Latin American law, inherited from the law and development tradition, which highlighted the pathologies and sought to reform them in the image, always idealized, of US law. In its place they highlight a set of topics or cross-cutting features that showcase creative and interesting legal developments, drawn from themes in the local (particularly Colombian) scholarship and social movements rather than from the reformist impulse.[42]
Perhaps this is an oversimplification of the meaning of reformism based on the misunderstanding of developmentalism we have just mentioned. Reformism is another big tent where we can find thinking on the use of legal instruments—similarly to the Legistics referred above—to provide legal packaging for the political material subject to the legislative process. New legal realism has contributions in this field as well.[43]
Developing countries’ strong leftist tradition may provide an alternate explanation for the rejection of reformism. Rather than addressing social issues by incremental or reformist steps, the leftist tradition envisions revolutionary transformation.[44]
For LPP, reforms are the institutional environment in which the effectiveness of rights can emerge when they need support from the state. The models for reforms, the drafting of legislation and participation around it, and the building of consensus are all issues for a new social state. The state as a whole and the specific policies—the “forest and the trees”—in a progressive view, are created and defended taking into account their interdependence. As Clune says, “capitalism also involves an intrinsic project of social interdependence and complexity emerging from the cooperative by-products of market transactions and concerted collective political activity.”[45]
4. Clune’s Reformism and Progressive Approach
One remarkable component of Clune’s contributions is his analysis of the role of the law and lawyers in the reformist dynamics of implementing public policies. He describes “the fabrication of reformist politics”[46] in regulated capitalism as the sum of multiple particular implementations in diverse substantive policy areas (education, health, pollution control, etc.). Taken collectively, they constitute “the alluvial formative process” of the welfare and regulatory state, considering that each policy leaves structures and interactions that will serve as basis for the next.
Promoting social transformations through the law operates in tandem with a new legal rationalization based on goals and performance. New legal realism in legal scholarship provides analytical tools to conceptualize political progressivism. The introduction of public policies in the vernacular of Public Law provided instruments to a new conception of the state, pointing out different instruments and dynamics in each political arena; legislative changes can be fundamental and even drastic; regulatory changes are relatively refined and incremental:[47]
[I]mplementation was defined as the process of creating or attempting social change through law. This social change sought by implementation is ‘programmatic,’ consisting of a relatively coherent policy implemented over a reasonably short period of time, after which the policy may become obsolete or reach a state of dynamic equilibrium. The social change also is difficult to accomplish because of unwillingness or incapacity in the regulated sector. The difficulty of the social task calls forth the characteristic legal response of implementation, “finely tuned” legal policy consisting of detailed planning, targeting, oversight, and control. Structurally, implementation tends to involve one or more organizations, agencies of the government, trying to change the behavior of other organizations, governmental or nongovernmental. Implementation is, therefore, a study of organizational interaction. Specifically, it is the study of governmental organizations trying to influence other organizations to do something that is difficult enough to require a great deal of interaction. [48]
Contrary to the fears of Latin Americans that opposed reformism, Clune does not deny the conflict embedded in the reformist political fabrication, but he points out the possibility of compromise. “All important decisions and structures involved in implementation are the result of political struggle and compromise between social movements and the interest groups whose behaviors the social movements desire to change.”[49] He proposes an interesting gradation for the compromise that sheds light on strategies of negotiation. The “three patterns of relative success are: a) the symbolic victory; b) the fizzle; c) the compromise.”[50] A significant contribution of the model is to provide a nuanced perception of the achievements of the movements toward transformation by assessing the outcomes of policies:
In difficult sociolegal tasks, the social movement seeking change always must accommodate the status quo. Pollution control must recognize regulatory costs, desegregation must recognize the integrity of the educational process, and affirmative action must recognize the autonomy of employer institutions. Fundamental rights as declared in litigation ultimately must yield to fiscal constraints. Yet, in spite of the benighted atmosphere associated with implementation, impressive results have been obtained in a great many areas. Desegregation does happen. The quality of air and water improves. Correctional and mental health systems become more humane. Handicapped children who got no public education get some. School finance reform yields more money for poorer districts.
Even here, second order doubts are appropriate. Has desegregation resulted in better education? Will white flight resegregate schools? Is clean air worth it? Is education for the handicapped too expensive? Has affirmative action, changing values, or the marketplace produced new employment? The debate over the ultimate efficacy of legal intervention is endless. The point here is simply that, in area after area, substantial progress apparently has been made in changing the conditions that have been defined as objectives of social reform movements. What activists tried to change did change – to a certain extent. In other words, there may be doubts about the more successful implementations, but they are not the doubts that apply to symbolic victories or fizzles.[51]
To close this section, consider one reminder of politics from almost forty years ago that sounds as if it were written today. Can’t politics seem circular sometimes?
As this article is being written [in 1983], the United States is experiencing a period of drastic legislative change sponsored by the Chief Executive. Programs that were changed incrementally over a period of ten to fifteen years are being eliminated, drastically cut, or consolidated in such a fundamental way that in practical terms the original program purposes have been lost. This process is neither new nor accidental; a conservative reaction to liberal programs has happened before. For example, implementation of many social programs was disrupted during Nixon administration.[52]
I invite you to read Clune’s separate blog post which provides updates to his previous comments. Perhaps there are lessons that can be shared in a North-South dialogue on LPP, despite the differences between Brazil and the United States.[53] Maybe we can learn from each other how to be resilient in the face of backsliding public policies in difficult times.
[1] Professor of the University of São Paulo (USP) Law School, at São Paulo, Brazil. Former Brazilian Secretary of Higher Education (2008-2010) and Legal Counsel of the Education Secretary (2005-2008). mariapaula@usp.br.
[2] See Clune’s article in this blog.
[3] Mauricio Garcia-Villegas. Disobeying the law: Latin America’s culture of non-compliance with rules. In Routledge Handbook of Law and Society in Latin America. Rachel Sieder, Karina Ansolabehere, and Tatiana Alfonso (editors). New York and London: Routledge, 2019, p. 66-80.
[4] Maria Paula Dallari Bucci, Fundamentos para uma teoria jurídica das políticas públicas (Foundations for a legal theory of public policies). 2nd edition. São Paulo: Saraiva, 2021.
[5] Some of these are John Kingdon’s Multiple Streams; the typology of public policies and decision-making arenas, by Lowi, the Garbage Can Model, by Cohen, March, and Olsen. See Paul Sabatier. Theories of policy process. Colorado: Westview Press, 2007.
[6] Maria Paula Dallari Bucci. Quadro de referência de uma política pública. Primeiras linhas para uma abordagem jurídico-institucional (The Law and Public Policy Framework. A legal-institutional approach) (Colunistas Direito do Estado, 2015 (link).
[7] A set of 14 studies has been published in a dossier on the method and applications of the LPP approach, following the leading article, Maria Paula Dallari Bucci. Método e aplicações da abordagem Direito e Políticas Públicas. Rio de Janeiro: Revista Estudos Institucionais, v. 5, n. 3, 2019 (link).
[8] Frederico Haddad. A pertinência da abordagem direito e políticas públicas ao estudo da política urbana no Brasil: o exemplo da pesquisa sobre as vias urbanas e sua função social. (The relevance of the LPP approach to the study of urban policy in Brazil: the example of research on urban roads and their social function). Rio de Janeiro: Revista Estudos Institucionais, v. 5, n. 3, 2019 (link).
[9] Marcelo Chilvarquer. Aplicando o quadro de referência para análise jurídica de políticas públicas: a implementação do programa Minha Casa, Minha Vida, faixa 1, no município de São Paulo (Using the public policy legal analysis framework: the implementation of Minha Casa, Minha Vida, faixa 1, in the city of São Paulo). Rio de Janeiro: Revista Estudos Institucionais, v. 5, n. 3, 2019 (link).
[10] Sérgio Valente. Direito e políticas públicas: uma visão jurídico-institucional sobre o caso do saneamento básico no Brasil (Law and public policy: a legal-institutional view on the case of basic sanitation in Brazil) Rio de Janeiro: Revista Estudos Institucionais, v. 5, n. 3, 2019 (link). Several other interesting topics have been explored through the LPP approach by the students I supervise. I chose these because they have already been published (the abstract in English is available), but I could have mentioned other studies, especially those proposing frameworks to deal with specific issues. For instance, Alexandra Fuchs Araújo, a judge from the State of São Paulo, sketched a roadmap about the judicial control of public policies; Ivo Corrêa, a lawyer, is designing a similar roadmap to the legislative process. In this case, we shall remark the kinship of the Theory of Legislation (or Legistics, in Switzerland) and LPP. This is one of the arguments of Charles-Albert Morand that his follower, Flueckiger, has developed.
[11] Matheus Souza & Maria Paula Dallari Bucci. O estado da arte da abordagem direito e políticas públicas em âmbito internacional: primeiras aproximações (The state of the art of the Law and Public Policy (LPP) approach in international bibliography). Rio de Janeiro- Brazil: Revista Estudos Institucionais, v. 5, n. 3, 2019, p. 833-855 (link).
[12] William Clune, Law and public policy: map of an area. Southern California Interdisciplinary Law Journal; 2 S. Cal. Interdisc. L. J. 1 (1993), p. 1-39 (link).
[13]William Clune. A Political Model of Implementation and Implications of the Model for Public Policy, Research, and the Changing Roles of Law and Lawyers. 69 Iowa L. Rev. 47 (1983-1984), p. 49-125 (link); William Clune. Legal Disintegration and a Theory of the State. In Critical Legal Thought. An American-German Debate. Baden-Baden: Nomos Verlagsgesellschaft, (1989), p. 187-208 (link).
[14] Morand, C.-A. (1999). Le droit neo moderne des politiques publiques. Paris: LGDJ.
[15] Auer, A., Delley, J. D., Hottelier, M. & Malinverni, G. Avant-propos. In Aux confins du droit. Essais en l’honneur du Professeur Charles-Albert Morand. A. Auer, J.-D. Delley, M. Hottelier & G. Malinverni (eds.). Munich: Helbing et Lichtenhahn, 2001, p. 7-9.
[16] Beginning with Maria Paula Dallari Bucci, Direito Administrativo e Políticas Públicas (Administrative Law and Public Policy). São Paulo: Saraiva, 2002, followed by Maria Paula Dallari Bucci. O conceito de políticas públicas em Direito (The concept of public policy in Law. In Políticas públicas: reflexões sobre o conceito jurídico. Maria Paula Dallari Bucci (ed.). São Paulo: Saraiva, 2006, and Maria Paula Dallari Bucci. Método e aplicações da abordagem Direito e Políticas Públicas (Method and applications of the Law and Public Policy Approach. Revista Estudos Institutionais, v. 5, n. 3, 2019. (link), among others.
[17] William H. Clune, Um modelo político de implementação e suas implicações para as políticas públicas, a pesquisa e a mudança dos papéis do direito e dos juristas. Translation into Portuguese by Gabriela Azevedo Campos Sales, Bruno de Almeida Passadore, Elisa Martinez Giannella and Kadra Regina Zeratin Rizzi. Brasília: Revista Brasileira de Políticas Públicas, v. 11, n.1, p. 19-81, 2021, (link). William Clune. Desintegração jurídica e uma teoria do Estado. Translation into Portuguese by Bruno Bodart and Sergio Ruy David Polimeno Valente. Curitiba: Revista de Investigações Constitucionais, vol. 8, n. 1, jan/april 2021, p. 107-133 (link). Mapa da área. Translation into Portuguese Julia Azevedo Moretti, Thiago Pires Oliveira. Technical review of the translation Maria Paula Dallari Bucci and Matheus Silveira de Souza. Curitiba: Revista de Direito Administrativo e Constitucional (forthcoming).
[18] Gosta Esping-Andersen. The three worlds of welfare capitalism. New Jersey: Princeton University Press. 1990.
[19] The text of the 1988 Brazilian Constitution in English can be found in Brazilian Chamber of Deputies site, with the Amendments until 2016 (link). Unfortunately, we could not find an updated translation that includes the various and important Amendments edited after that.
[20] The translation for “Constituição dirigente” could also be “the leading Constitution”.
[21] The expression comes from the title of Joaquim Gomes Canotilho’s book, Constituição Dirigente e Vinculação do Legislador. Contributo para a Compreensão das Normas Constitucionais Programáticas (Directing Constitution and Binding of the Legislator. Contribution to the Understanding of Programmatic Constitutional Norms). Coimbra: Coimbra Editora Ltda., 1994. In the 2nd edition of the book, published in the context of the attempt of drafting a European Constitution, Canotilho revised the initial assumptions to remark that the Constitution shall not bear tasks that belong to the political sphere, such as public policies. But Brazilian jurists never accepted this position changing, remaining attached to the idea of the Ruling Constitution. Joaquim Gomes Canotilho. Constituição Dirigente e Vinculação do Legislador. Contributo para a Compreensão das Normas Constitucionais Programáticas. 2nd edition, 2001. Preface.
[22]T.H. Marshall. Citizenship and Social Class. London: Cambridge University Press, 1950. I discuss these rights in terms of dimensions, not generations, to emphasize their complementarity, excluding the idea of competition, which is rejected in the Global South for historical and geopolitical reasons.
[23] Alexandra Huneeus and Heinz Klug. Lessons for new Legal Realism from Africa and Latin America. In Research Book on Modern Legal Realism. Shauhin Talesh; Elizabeth Mertz; Heinz Klug (editors). UK: Edward Elgar Publishing, 2021, p. 82-99.
[24]This has something to do with the influence of German Law in Brazil, through the intermediate of the Portuguese Constitutional doctrine. As Huneeus and Klug note (p. 83), Latin America grabs inspirations from Europe as well.
[25] Luis Roberto Barroso. O direito constitucional e a efetividade de suas normas: limites e possibilidades da constituição brasileira (The constitutional law and the effectiveness of its norms : limits and possibilities of the Brazilian constitution). 1st edition. Rio de Janeiro: Renovar, 1990.
[26] Luís Roberto Barroso. Countermajoritarian, representative, and enlightened: the roles of Constitutional Courts in democracies. The American Journal of Comparative Law, Volume 67, Issue 1, March 2019, p. 109–143. “[C]onstitutional courts in the democratic world perform three different roles: counter-majoritarian, when they invalidate acts of other branches of government; representative, when they meet social demands not satisfied by the elected branches; and enlightened, when they promote certain social advances that have not yet gained majority acceptance, but are requirements of the civilizing process.” See also Murilo Gaspardo, The Brazilian Supreme Court and its Political Protagonism: an Overview of the STF and its Rise to Prominence in Brazilian Politics after 1988. In The Unwritten Brazilian Constitution. Rubens Beçak and Jairo Lima (editors). UK: Lexington Books, 2021.
[27] Fernando de Brito Alves, Gay marriage: the role of the Brazilian Supreme Court in recognizing the right to same-sex civil unions; Simone Cristine Araújo Lopes, Criminalization of homophobia – trial at the Brazilian Supreme Court. Both in The Unwritten Brazilian Constitution. Rubens Beçak and Jairo Lima (editors). UK: Lexington Books, 2021
[28] One example of public policy mentioned in the Constitution, addressed to the legislature, is the National Education Plan (article 214). See Maria Paula Dallari Bucci & Fernando A. Dourado Gomes, A piece of legislation for the guidance of public education policies in Brazil: the National Education Plan 2014–2024. The Theory and Practice of Legislation, v. 5, issue 3, 2017.
[29] Rubens Beçak and Jairo Lima. The promises of the Brazilian Constitution of 1988 and the encounter between human rights and the Supreme Court. In The Unwritten Brazilian Constitution. Rubens Beçak and Jairo Lima (editors). UK: Lexington Books, 2021, p. 1-10.
[30] Virgilio Afonso da Silva & Thomas Pereira. The Constitution of Brazil in context. History, politics and design. In The Oxford Handbook of Constitutional Law in Latin America. Conrado Hübner Mendes, Roberto Gargarella and Sebastián Guidi (editors). UK: Oxford University Press, 2022.
[31] Maria Paula Dallari Bucci & Fernando A. Dourado Gomes, A piece of legislation for the guidance of public education policies in Brazil: the National Education Plan 2014–2024, cit.
[32] Maria Paula Dallari Bucci, Conceito de políticas públicas em direito (A legal concept to public policy). In Políticas públicas: reflexões sobre o conceito jurídico. M. P. D. Bucci (editor). São Paulo: Saraiva, 2006, p. 1-50. Ideally, public policy expresses a choice of priorities, the allocation of means, and the period necessary to accomplish the expected outcomes.
[33] Huneeus & Klug, cit, p. 82.
[34] Shauhin Talesh, Elizabeth Mertz and Heinz Klug. Introduction to the Research Handbook on Modern Legal Realism. In Research Handbook on Modern Legal Realism, Shauhin Talesh, Elizabeth Mertz and Heinz Klug (editors). UK: Edward Elgar Publishing, 2021, p. 1-20.
[35] Huneeus & Klug, cit, p. 83; 85.
[36] David Trubek & Marc Galanter. Scholars in self-estrangement: some reflections on the crisis in law and development studies in the United States. Wisconsin Law Review, 1974, n. 4, p. 1062-1102.
[37] Duncan Kennedy. The globalization of Critical Discourses on Law: Thoughts on David Trubek’s contribution. In Critical Legal Perspectives on Global Governance, Gráinne de Búrca, Claire Kilpatrick, and Joanne Scott (editors). Oxford and Portland, Oregon: Hart Publishing, 2014.
[38] Editor’s preface. Critical Legal Perspectives on Global Governance. Liber amicorum David M. Trubek. Gráinne de Búrca, Claire Kilpatrick, and Joanne Scott (editors). Oxford and Portland, Oregon: Hart Publishing, 2014.
[39] Pedro Fortes. An agenda for Latin American “Law and Development.” In Routledge Handbook of Law and Society in Latin America. Rachel Sieder, Karina Ansolabehere, and Tatiana Alfonso (editors). New York and London: Routledge, 2019, p. 138-151.
[40] Huneeus & Klug, cit, p. 87.
[41] Rodríguez Garavito, C. (ed.) 2011b. El Derecho y Sociedad en América Latina: un mapa para el pensamiento jurídico del siglo XXI. Siglo Ventiuno. Apud Huneeus & Klug, cit. p. 85.
[42] Huneeus & Klug, cit. p. 85.
[43] Ann Seidman and Robert B. Seidman, Instrumentalism 2.0: legislative drafting for democratic social change. Legisprudence, v. 5, n. 1, 2011, p. 95-142.
[44] Clune remarked on this: “Nihilist scholars dine out by adopting the role of debunker and unmasker. It is an easy role to play, given a little elementary sociology of law, because the one thing we can be sure of, and therefore do not need research to demonstrate, is that neither side of a sociolegal conflict gets everything it wants. ‘Findings’ that nothing is a complete success or failure obscure the more interesting, but harder to research, issue of relative success or failure.” Clune. A political model of implementation, cit., p. 87.
[45] Clune. Legal disintegration and a theory of the state, cit. p. 196.
[46] Clune. A political model of implementation, cit.
[47] Clune. A political model of implementation, cit.
[48] Clune. A political model of implementation, cit., p. 51.
[49] Clune. A political model of implementation, cit. p. 78.
[50] Clune. A political model of implementation, cit. p. 87.
[51] Clune. A political model of implementation, cit. p. 88-89.
[52] Clune. A political model of implementation, cit., p. 71-72.
[53] In the Republican period, after 1889, Brazil followed the U.S. model of constitutionalism, adopting federalism and presidentialism, as did other American countries, such as Mexico and Argentina. Nonetheless, the legal system is a civil law, rather than common law, system. And, the federal practice has remarkable differences from the model, presenting a much more centralized reality. States do not have many initiatives in public policies. The voting system runs relatively well, although the party system is chaotic, with more than thirty parties represented in the National Congress and the legislatures in states and municipalities, with specific coalitions.