Revisiting a 'Promising Institution': Public Law Litigation in the Civil Law World

Abstract:     
Brazil has attracted attention as one of the few civil law countries that has successfully incorporated and developed a procedural mechanism for group litigation. The public civil action (acao civil publica), created by statute in 1985, enables the legal defense of environmental, consumer and other "diffuse and collective" interests. This article argues that what is most interesting about the public civil action in Brazil is not the procedural instrument itself, but the legal institution that has been key in establishing it and using it to have the impact that it has had - the impact of public law litigation, the impact of using the courts to enforce statutory and constitutional rights. This legal institution is the Brazilian Ministerio Publico or, using its French name, the Ministere Public. It is the prosecutorial institution that constitutes the civil law tradition's analog to the Attorney General in common law countries. In Part I, the literature on public law litigation and the Ministere Public is reviewed. Part II describes the role that the Brazilian Ministerio Publico has played in establishing the legal framework, building its institutional capacity, and doing public law litigation.

Number of Pages in PDF File: 42

Keywords: public law litigation, prosecutors, brazil, public interest, civil law, comparative law

JEL Classification: K4

Accepted Paper Series