The Normative Potential of the Principle of Public Participation in Brazil: an Example From the São Paulo Court of Justice

Abstract

The principle of public participation (“participação social”) is one of the dimensions attributed to the concept of due legislative process. Brazilian courts have increasingly used the concept of due legislative process, but only a few gave normative value to the principle of public participation. The Court of Justice of the State of São Paulo, in abstract judicial review processes (“ação direta de inconstitucionalidade”), has delivered many decisions that declared formal invalidity of statutes, arguing that the legislative process has not observed the explicit provisions of the State Constitution on the need for social participation. Even though the Federal Constitution of Brazil of 1988 has always had a participative democracy orientation and, since 2020, also a clearer mandate on social participation in social policy formulation, the Federal Supreme Court has not examined the formal constitutionality of legislative statutes under this perspective. Based on the contemporary understanding of participation in the legislative process and the cyclic nature of the latter and a case study on one of the decisions of the Court of Justice of the State of São Paulo, we argue for the potential applicability of the principle of public participation as a founding norm of due legislative process in the future proceedings before the Federal Supreme Court. We also conclude that this understanding may lead to a paradigm change in the Brazilian theory and practice of legislation and could encourage more research in the field.

Keywords: participation, legislative process, Brazil, rule of law, democracy, judicial review