<abstract xmlns="http://www.w3.org/1999/xhtml"><p>Judicial institutions which provide legal mechanisms for conflict resolution play an important role in maintaining the social order of complex societies. Weaknesses in the performance of their duties can contribute to social conflict developing into outright violence that will be beyond the management of law and the courts. In this sense it is strategic to study the judicial system and the decision-making processes of its judges if one wants to understand the ways conflicts are dealt in a certain place and time. In this article we focus our attention on the role of the Brazilian Federal Supreme Court as custodian of the Constitution and the discourses that its decision-making construct when dealing with human rights issues. Specifically we set out to understand how the opinions of Brazilian Supreme Court Justices are constructed when deciding cases concerning freedom of religion. The timeline considered covers 31 years, from 1988 to 2019, a period that begins with the promulgation of the new constitution in 1988 (which symbolically reinstated democracy in the country after the end of the period of military rule that began in 1964) up to the present day. We begin by presenting the legal definition of freedom of religion in Brazil which constitutes the normative background of the discussion. We then discuss our project, stressing the methodological approach we have adopted and finally we present our data findings. We identified 39 cases in total of which 11 were selected and analyzed using the methodology of Semiolinguistic Discourse Analysis in order to define the semantic field related to freedom of religion in Brazil. Even though the number of cases is not large it is possible to identify some features of Brazilian legal culture which are also recurrent when dealing with religious freedom. One of these features is the absence of consensus-building logic in the Justices’ opinions—we attribute this to what we term the disputatio mindset—which contributes to continuing institutional instability and legal insecurity. Our findings suggest that these Supreme Court decisions frequently lack the strong level of rational consistency that lower courts require if they are to identify clear guiding principles that can control the outcomes of new cases</p></abstract>

Judicial institutions which provide legal mechanisms for conflict resolution play an important role in maintaining the social order of complex societies. Weaknesses in the performance of their duties can contribute to social conflict developing into outright violence that will be beyond the management of law and the courts. In this sense it is strategic to study the judicial system and the decision-making processes of its judges if one wants to understand the ways conflicts are dealt in a certain place and time. In this article we focus our attention on the role of the Brazilian Federal Supreme Court as custodian of the Constitution and the discourses that its decision-making construct when dealing with human rights issues. Specifically we set out to understand how the opinions of Brazilian Supreme Court Justices are constructed when deciding cases concerning freedom of religion. The timeline considered covers 31 years, from 1988 to 2019, a period that begins with the promulgation of the new constitution in 1988 (which symbolically reinstated democracy in the country after the end of the period of military rule that began in 1964) up to the present day. We begin by presenting the legal definition of freedom of religion in Brazil which constitutes the normative background of the discussion. We then discuss our project, stressing the methodological approach we have adopted and finally we present our data findings. We identified 39 cases in total of which 11 were selected and analyzed using the methodology of Semiolinguistic Discourse Analysis in order to define the semantic field related to freedom of religion in Brazil. Even though the number of cases is not large it is possible to identify some features of Brazilian legal culture which are also recurrent when dealing with religious freedom. One of these features is the absence of consensus-building logic in the Justices’ opinions—we attribute this to what we term the disputatio mindset—which contributes to continuing institutional instability and legal insecurity. Our findings suggest that these Supreme Court decisions frequently lack the strong level of rational consistency that lower courts require if they are to identify clear guiding principles that can control the outcomes of new cases

Freedom of Religion in the Brazilian Supreme Court in a Period of Three Decades

Professor of Law, Federal Judge, Ph.D. – PPGD/UNESA

British Journal of American Legal Studies

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

{"article-title":"Freedom of Religion in the Brazilian Supreme Court in a Period of Three Decades"}

Judicial institutions which provide legal mechanisms for conflict resolution play an important role in maintaining the social order of complex societies....

Freedom of Religion in the Brazilian Supreme Court in a Period of Three Decades

Publié en ligne: 14 juil. 2020

Pages: 441 - 460

DOI: https://doi.org/10.2478/bjals-2020-0014

Mots clés
Brazilian Legal Studies, Brazilian Legal Culture, Freedom of Religion, Brazilian Supreme Court (STF)

© 2020 Fernanda Duarte et al., published by Sciendo

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

Freedom of Religion in the Brazilian Supreme Court in a Period of Three Decades

Publié en ligne: 14 juil. 2020

Pages: 441 - 460

DOI: https://doi.org/10.2478/bjals-2020-0014

Mots clésBrazilian Legal Studies, Brazilian Legal Culture, Freedom of Religion, Brazilian Supreme Court (STF)

© 2020 Fernanda Duarte et al., published by Sciendo

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

Mots clés
Brazilian Legal Studies, Brazilian Legal Culture, Freedom of Religion, Brazilian Supreme Court (STF)