Unwritten Constitutional Law as a Brazilian Constitutional Category?
The recognition of unwritten constitutional law as a Brazilian constitutional category is contingent upon its value for addressing constitutional issues in Brazil. This is particularly challenging, however, since unwritten constitutionalism appears peculiar from the Brazilian perspective. If not peculiar, this category would be, one could say, unusual. At least if it should serve as a constitutional category for analysis of Brazilian constitutional law. The average Brazilian legal scholar will only have heard or written about unwritten constitutionalism when dealing with constitutional orders without a constitution codified in a document – such as, typically, the British. But that will usually also not have taken more than a footnote or a couple of lines and served virtually only the purposes of both clarifying a difference of constitutional model and stating: The Brazilian constitutional model is a written one.
A Place for Unwrittenness in Brazilian Constitutional History?
This prevalent view has its historical reasons. In approximately 200 years of history as an independent state, Brazil has had seven written constitutions – including one enacted short after the establishment of the Brazilian Empire (1824) and two enacted during dictatorial regimes (1937 and 1967). Due to the influence of the continental European civil law’s approach, codification has always meant a lot for the Brazilian way of thinking constitutional law. Besides, possibilities of changing the constitutional text have been formally regulated since the Constitution of 1824 (Art. 174 ff.) – although more in detail only since the Constitution of 1934 (Art. 178).
Nevertheless, unwritten constitutional norms may arguably have played a significant role in the country at least since the first republican constitution of Brazil (1891). There are two main indications that support this affirmation. First, the text of the Constitution of 1891 presupposes normativity from uncodified constitutional norms. It sets constraints for State’s competences through implicit norms of the Constitution (Art. 65, 2), states that its bill of rights does not exclude other unspecified rights (Art. 78), and declares that statutes of the old imperial regime remain valid to the extent that they do not explicitly or implicitly contradict the new constitutional order, in case they would not have been repealed (Art. 83). Second, the constitutional doctrine of that time had already held numerous discussions about implicit constitutional norms, notably in matters of distribution of competences and in consideration of the US-American doctrine of implied powers.
Despite this background, one might still wonder whether there could be a place left for unwritten constitutional law after regarding the current Brazilian Federal Constitution. The Constitution was enacted in 1988 with 245 Articles, plus another 70 Articles of the Temporary Constitutional Provisions Act. Until the end of 2023, the Brazilian Constitution has been altered 132 times through constitutional amendments. In terms of contents, the Constitution comprises a wide variety of matters, such as fundamental rights, social rights, political rights, organization of the state and the branches, the defense of the state and of democratic institutions, tax law, financial law, public health, education, culture, sports, environment, and indigenous people’s rights. Furthermore, the Constitution can be described as normatively open, or, as others have done, as “principles-oriented”, “transformative” and “directive”.
Unwritten Constitutional Law – What for in Brazil?
Taking that into account, why should one resort to unwritten constitutional law in Brazil? Is the considerable openness of the written constitution not enough for the interpretation and application of constitutional law? Even admitting the existence of non-explicit constitutional norms, why should one call them unwritten? Does the Constitution not provide enough material for connections of non-explicit norms with the constitutional text?
These might be some questions that helped keeping the nomenclature “unwritten” out of the great majority of the Brazilian constitutional law books. Instead, the Brazilian doctrine prefers making use of other labels such as “general legal principles” and “material norms of the constitution”. “Judicial activism”, “constitutional concretization” and “living constitutionalism” are terms meanwhile way more widespread in the Brazilian scene than “unwritten constitutional law”. This relates noticeably to the influence of “post-positivism” and the so-called “neoconstitutionalism”.
In consequence of that, it remains virtually unanswered whether the lack of explicitly addressing unwritten constitutional normativity has led to oversimplified or misleading elaborations of some Brazilian constitutional problems. With regard to the judicial application of the constitution, the demand for an understanding of constitutionality encompassed within a category of unwritten constitutionality could be seen to have relevance in at least five areas of constitutional application. First, in the need for normative complementation of the Brazilian Constitution in concrete cases where the application of constitutional law does not seem well supported by the constitutional text. Second, in ascertaining the extent to which the Federal Supreme Court should engage in forms of “judicial activism” in the face of Brazil’s distrusted legislature. Third, in determining how extra-textual understandings of judges regarding approaches to constitutional interpretation, principles and theories of justice can legitimately influence the application of law. Fourth, in evaluating how the qualification of popular participation or representation (e.g. through amicus curiae) in constitutional court proceedings contributes to the legitimation of decisions that can hardly be well supported by the constitutional text. And fifth, in assessing how transconstitutionalism in a broader sense affects the Brazilian constitutional jurisdiction with regard to the legitimacy of its activity also in cases that can hardly be supported by the constitutional text.
Brief Comments on the So Far Offered Approaches to Unwritten Constitutional Law in Brazil
Notwithstanding this demand, the majority of the so far offered (explicit) approaches to unwritten constitutional law as a Brazilian constitutional category were either not precise enough about the links between Brazilian constitutional practices and unwritten constitutional norms or did not have the intention of pursuing specific Brazilian contours in matters of unwritten constitutional law. The latter is perceptible by texts that dealt with unwritten constitutional law as a foreign or a general constitutional category, without exploring in detail their use or application in the current Brazilian constitutional structure (Cf. e.g. Melo, 2020; Barboza and Demétrio, 2022; and Lisboa, 2012). The former is the case by the recently published case book “The Unwritten Brazilian Constitution” (Becak and Lima, 2021). On the one hand, the work is commendable for presenting, contextualizing and critiquing paradigmatic cases of the Brazilian Federal Supreme Court in English, since many important decisions of the Court tend to remain out of the focus of the international constitutional debate due to the lack of translations and analyses of the decisions in English. On the other hand, the reader gets the impression that “unwritten constitution” is used more as a catchword than as a constitutional category. It is sort of paradoxical that the word “unwritten” appears only rarely and cannot even be found in the quite detailed index of the book (Becak and Lima, 2021, p. 263 ff.). Based on its introductory chapter, one could assume that the work does not aim to explore unwritten constitutional law as a constitutional category in detail, and that “unwritten constitution” is understood both as the Federal Supreme Court’s practice of “extending its competences in favor of nonexplicit powers in the Constitution” and as the Court’s development of “an unwritten understanding of the content of the fundamental rights” (Becak and Lima, 2021, p. 6-7).
Final Remarks
The example of Brazil reveals very specific nuances and forms of unwritten constitutionalism: unwritten constitutional normativity that plays a role despite a codified, textually open, amendable and civil law-influenced constitution. Rather than being a result of a lack of written norms, the need for unwritten constitutional law as a constitutional category may be driven by the textual complexity and the institutional design of the written constitution, which may demand normatively more than it can itself deliver. It is not necessarily the case that greater “writtenness” leads to less “unwrittenness”, particularly if “unwrittenness” implies a gradually measurable semantic distance from the constitutional text rather than an absolute disconnection from it. However, it remains unclear whether all of this makes unwritten constitutional law a Brazilian constitutional category. Ultimately, neither a historical background nor a legal-academic claim can define it by itself: The future of unwritten constitutional law as a Brazilian constitutional category will depend on its capacity to prove its relevance in identifying, articulating, and solving Brazilian constitutional problems.