Constitutional Courts as Negative/Positive Legislators: The Brazilian Case

Abstract

This paper is a report for the 18th World Congress of the International Academy of Comparative Law, which will be published in a volume edited by the General Reporter, Prof. Allan Brewer-Carias. One of the main topics proposed for discussion in the 18th International Congress of the International Academy of Comparative Law is the legislative role of Constitutional Courts in contemporary democracies. The Brazilian state, like many of those from the Iberic and Latin-American tradition, can be characterized as a mixed legal system which attempts to reconcile a model of diffused and incidenter tantun judicial review with a concentrated and abstract model where the Constitutional Court pronounces abstract decisions in direct actions of unconstitutionality. These decisions have erga omnes and strictly binding effects. In this paper, I discuss the general effects of the judicial norms that the Court creates in its adjudicatory activity, with a view to determine the extent of is legislative activity and its compatibility with Hans Kelsen's original view of the Constitutional Courts as "Negative Legislators."

Keywords: Constitutional Courts, Brazil, Kelsen, Negative Legislator