Institutions of the Rule-based Democracy and Political and Social Development

This line of research investigates the functioning of institutions in the Rule-based Democracy, responsible for the production, interpretation, and application of Law, as configured in the constitutional and public international spheres. The study of the justice system, public policies, and international institutions, with an emphasis on reflecting on institutional designs and reforms, human and social rights, individual capacities, democracy, and State control, seeks to increase the understanding of public legal mechanisms that enable or constrain the implementation of  the Rule-based Democracy.

Included here are, in particular, issues surrounding constitutional, administrative, and criminal law in their relations with the operation of the justice system, human rights, social policies, public policies, enforcement of rights, State control, public-private relations, among others. Some of the topics that currently mobilize innovation in the field of Law and Development are included in this line: Anti-discrimination Law, Law and Gender, Legal Conformation of Sustainable Development, Law and Decolonization, among others.

Law as a tool for political and social development

Find out more about the research line on Institutions of the Ruled-based Democracyand Political and Social Development of the Academic Master and PhD programs of FGV Sao Paulo Law School, with professors Flávia Püschel, Luciana Gross Cunha and Maíra Rocha Machado.

Research project

State Crisis and Democracy Challenges in Brazil

This project examines the changes in legitimation speeches, in institutional designs and practices, and political warranties within the context of contemporary transformations of the State, in forms of production and subjectivity. In a specific way, it seeks to analyze how these transformations occur in Brazil and how they can affect the functioning of democracy and public policies.  

Coordination: Professor José Garcez Ghirardi

Constitutional Jurisdiction, Fundamental Rights and Institutional Design

This project analyzes the role of STF in exercising constitutional control, its relationship with other political powers, identifies and checks the interpretation models used by its ministers in their decisions, and carries out a comparative study of Constitutional Courts. In addition, it studies the interpretation and implementation of fundamental rights in national and foreign law, from the procedural perspective of constitutional justice and specific issues of the general theory of law, specifically concerning methodological options on the interpretation of constitutional law and theory problems of the norm. It also includes studies the design and impact of inequality on the operation of the institutions of the Ruled-based Democracy.

Coordination: Professor Oscar Vilhena in collaboration with professors Dimitri Dimoulis and Luciana Gross Cunha

 

Brazilian Justice System: Institutional Law and Legal Practitioners

The project resumes the theme of access to justice. As it is well known, the Brazilian justice system, as conceived by the Federal Constitution of 1988, consists of a set of institutions whose main objective is to expand access to justice. However, the specialized literature has shown that its daily operation is rather an obstacle to this end. Whether due to the lack of institutionalization of the model, or to political, economic, and social variables, or corporate issues, the Brazilian justice system continues to be expensive, slow, and inefficient, regarding the principles of the Rule-based Democracy. Assuming that institutions matter, and that, in the case of Law, the operation of the justice system is an essential instrument for development, the project aims to study the institutions of the justice system and their functioning. In this context, it is essential to investigate  law practitioners, in order to understand how institutions behave. Thus, the project focuses on the composition of careers in the institutions of the justice system, and the role and power of influence of these characters.

Coordination: Professor Luciana Gross Cunha

Professional Networks and Bureaucratic Discretion at STF

This project is inserted in field of studies on the autonomy and discretion of the state bureaucracy, having as study object the Federal Supreme Court (STF). The objectives are (i) mapping the profile of its bureaucratic body; (ii) understanding its configuration and  operation; and (iii) identifying the relational flows in the professional networks of  these bureaucrats. We are interested in looking at the composition of the cabinets of ministers, including advisory judges and law graduates who occupy commissioned posts, checking  the existence, modus operandi, and influence of informal networks that interfere in the choice of these professionals. The research will shed light on the role of this body of advisors and assistants, who can act as mediators, coordinators, or gatekeepers between different interest groups and STF ministers, thus contributing to the public debate on transparency rules and responsiveness of state bureaucracy.

Coordination: Professor Luciana Gross Cunha

The Courts and Health Technology Assessment in a Comparative Perspective

This project analyzes the relationship between the Judiciary and Health Technology Assessment systems (HTA) that inform health systems on the decisions regarding the incorporation of new technologies. First, we analyze the possibility of e health judicialization creating incentives for the creation of HTA systems. Four cases will be studied - Brazil, Colombia, Costa Rica, and England - where there is evidence that lawsuits for the provision of medical treatments help explain the creation of HTA systems. Then, we look at different court approaches, when judging decisions on access to treatment, and how each approach affects health systems and HTA differently. Courts may (i) demand quality, consistency, and procedural fairness in HTA (England); (ii) restrict the scope of HTA use, for example, excluding economic criteria in resource allocation (Colombia); (iii) ensure access of individuals to treatments not incorporated by HTA recommendation; and (iv) reassess technologies with the support of experts acting under the supervision of the Judiciary. This research is particularly important in the context of rising health care costs and the increasing involvement of the Judiciary in decisions on the allocation of health resources.

Coordination: Professor Daniel Wang

STF and Covid

With the help of computing and artificial intelligence, this project seeks to understand the role of the Supreme Court (STF) during the Covid 19 pandemic, in all areas of Law. The main questions that the project will seek to answer are: (i) What issues have come to STF?; (ii) What is the context in which cases are taken to STF?; (iii) How has STF decided?; (iv) Is there a jurisprudence for crisis or continuity in STF’s jurisprudence?; and (v) Is the perception of the crisis and the role of STF consistent across different areas? This project is subdivided in a few axes: (1) penal; (2) responses to the pandemic, including social distancing and vaccination; (3) data transparency and confidentiality; (4) assistance benefits; (5) budgetary flexibility; and (6) contract review.

Coordination: Professor Daniel Wang

Judicialization and Supplementary Health

Brazil has a supplementary health system with 47 million users, which represents more than 20% of the population. The  healthcare sector's expenditure in 2019 amounted to R$ 179 billion, and was significantly higher than that of the Ministry of Health in the same year. It is a sector with great challenges. Many of these challenges are regulatory, since it is a highly regulated sector to ensure consumer protection and adequate timely provision of services. Another challenge is the growing mismatch between user expectations and the system's ability to meet them. These challenges often lead to conflicts between practitioners and users that end up getting  a solution from the Judiciary, the so-called ‘health judicialization’. In 2020 alone, 46 thousand new actions were distributed in the common courts or special courts. According to existing data, judicialization against the supplementary health sector is much higher than the judicialization against the Unified Health System (SUS). On the other hand, academic papers  on the judicialization phenomenon against the supplementary health sector are very few  compared to the number of articles on lawsuits against SUS. The project, through big data and artificial intelligence, seeks to present a broader and more complete picture of judicialization against the health supplementary system.

Coordination: Professor Daniel Wang

Research in Law, with Law and for Law*

This project builds on the results of a previous research, “Teaching Methodology and Empirical Research in Law”, to investigate how different methodological strategies challenge the prescriptive and normative dimensions of Law. In addition to increasing the interest and relevance of the list of methods and techniques available in the national and international literature, we seek to investigate how the results of research conducted through case studies, interviews, and different types of document systematization can both contribute and challenge activities that are essential to the legal world, not only at the jurisdictional level, but also at the level of legislative reforms.

Coordination: Professor Maíra Rocha Machado

*Project available in 2022

Responsibility, punishment, and performance of the justice system*

This project focuses on the normative arrangements, justification speeches, and decision-making practices of what is usually called "penal execution" in Brazil.

Coordination: Professor Maíra Rocha Machado

*Project available in 2022

Civil Society, Public Sphere, and Law: “Juridification” of Social Demands and Legal Ambivalences

This project aims to observe repertoires of action, legal strategies, and frameworks used in the mobilization of civil society’s actors in the struggle for rights. On the other hand, it intends to observe how State institutions respond to these actions, how they are institutionally organized to dialogue with the public sphere, how susceptible they are to the participation and demands of civil society, and, in some cases, how they articulate repressive responses. One of the main issues of this research is the role of criminal law and the criminal justice system in social struggles; it appears, from the empirical material, a very ambivalent role.

Coordination: Professor Marta Machado

The Role of Law and Institutions in the Deterioration Process of Democracy

This project seeks to reflect upon the role of law and institutions in the process of democracy deterioration. Several countries in the world are going through different processes of deterioration of democracy. Unlike previous waves of “autocratization”, the current damage to liberal democracies is occurring in subtle and incremental ways, within electoral agendas and often hidden behind the facade of institutional normality. Autocratic legalism (Sheppele, 2018), abusive constitutionalism (Landau, 2013), and constitutional capture (Müller, 2014) are some of the concepts that try to understand the dismantling of constitutional democracies through the use of legal mechanisms. Law plays an important role in this process, on one side sustaining it and, on the other, serving as a means of resistance. Understanding the dynamics between formal and informal norms, as well as interpretive disputes, are central to this project.

Coordination: Professor Marta Machado

"Fighting" Corruption through Criminal Procedure

The project focuses on “Operação Lava-Jato”, one of the most important cases in the history of the fight against corruption in Brazil, which involved the use of legal provisions and old practices and innovations in the system, such as plea bargain agreements. These innovations certainly played an important role in the case, as several scholars have argued. Much less debated, but equally relevant, are the new interpretations of provisions of criminal law, criminal procedure, and the Constitution, by Brazilian judges and courts. Focusing on the new jurisprudential interpretations of Lava-Jato, this project seeks to discuss the advances, but also the potential risks of this strategy to constitutional principles of the Rule of Law. 

Coordination: Professor Marta Machado 

Law, Development and Postcolonial World

This project aims to better understand the relationship between law, politics, religion, and society in the development processes of countries and regions previously or currently subjected to colonization or occupation. There is a special interest in the Arab world, in the Muslim world, which covers a good part of Africa and Asia. The following topics will be addressed: 1) The colonial heritage, in terms of institutions, politics, and law, and its effects on development processes; 2) The result of the combination of local, previous, religious, or traditional Law, with the Law brought by colonization, and the effects on the rule of law; 3) The normative and institutional transplant processes; 4) The relationship between international, political, legal, and economic institutions and national development processes in postcolonial societies; and 5) The resilience, in various forms, of processes of domination or hegemony that replaced traditional colonialism, and its relationship with development.

Coordination: Professor Salem Nasser

Global Law (as Globalization Law and as Law in Globalization) and Development

This project aims to understand the multiplicity of normative, legal, and non-legal phenomena that regulate international relations, as well as local or national relations in times of globalization; and  understand the relationships between these multiple normative phenomena. The topics addressed relate to: 1) Legal pluralism, pluralism of legal orders, of legal regimes, of normative sets, and their implications for development and the rule of law (in the broad sense that includes legal certainty, legitimacy, justice, accountability, etc.); 2) The fragmentation of International Law into specialized regimes, and its relationship with development and the rule of law; 3) Specific studies related to one or some of the normative phenomena of what is being called ‘global law’, or about the literature that analyzes, describes, or criticizes them: global administrative law, transnational private regulation; soft law; global governance, etc.; 4) Studies on thematic, global or transnational, legal, state or private regimes; 5) Globalization Law, as the Law that constitutes and organizes what is called ‘the globalization process’; and 6) Law in globalization, as the implications of the globalization process on Law (whatever it is, national, international, local, etc...), and its operation.

Coordination: Professor Salem Nasser

Rule of Law, Democracy Crisis and Autocratic Legalism

Around the world, democracy is in retreat. The latest reports by V-Dem and Freedom House show an increase in autocratic practices and attacks on fundamental freedom. Unlike previous waves of “autocratization”, the current damage to liberal democracies occurs in subtle and incremental ways, within electoral agendas and often hidden behind the facade of institutional normality. Autocratic legalism (Sheppele, 2018), abusive constitutionalism (Landau, 2013), and constitutional capture (Müller, 2014) are some of the concepts that try to understand the dismantling of constitutional democracies by legal mechanisms. The project seeks to analyze, from a socio-juridical approach, how law and institutions enable and resist autocratic projects, in Brazil other countries, through a comparative perspective (with special focus on South Africa and India).

Coordination: Professors Oscar Vilhena, Marta Machado, José Garcez Ghirardi, Michelle Sanchez Badin and Raquel Pimenta