Constitutional Courts as Negative/Positive Legislators: The Brazilian Case

BUSTAMANTE, Thomas; GODOI BUSTAMANTE, Evanila. Constitutional Courts as Negative Legislators: The Brazilian Case, in BREWER-CARÍAS, Allan (ed.), Constitutional Courts as Negative Legislators. Cambridge: Cambridge University Press, 2011, pp. 283-313

25 Pages Posted: 7 Nov 2010 Last revised: 2 Jan 2013

See all articles by Thomas Bustamante

Thomas Bustamante

Federal University of Minas Gerais (UFMG)

Date Written: April 20, 2010

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

Suggested Citation

Bustamante, Thomas da Rosa, Constitutional Courts as Negative/Positive Legislators: The Brazilian Case (April 20, 2010). BUSTAMANTE, Thomas; GODOI BUSTAMANTE, Evanila. Constitutional Courts as Negative Legislators: The Brazilian Case, in BREWER-CARÍAS, Allan (ed.), Constitutional Courts as Negative Legislators. Cambridge: Cambridge University Press, 2011, pp. 283-313. Available at SSRN: https://ssrn.com/abstract=1704184 or http://dx.doi.org/10.2139/ssrn.1704184

Thomas da Rosa Bustamante (Contact Author)

Federal University of Minas Gerais (UFMG) ( email )

Av. Antonio Carlos, 6627
Belo Horizonte, Minas Gerais 31270-901
Brazil

HOME PAGE: http://www.ufmg.br

Register to save articles to
your library

Register

Paper statistics

Downloads
282
rank
100,839
Abstract Views
1,159
PlumX