Citizenship and Human

Rights in Brazil

ÁLVARO FILIPE OXLEY DA ROCHA*

Abstract: The article seeks to approach the citizenship’s concept, and the judicial and social basic conditions, necessary for its achievement, while highlighting the position of the Brazilian Judiciary. Therefore, some of the most important points of the 45th Constitutional Amendment and the “new rights”, seen as instruments for facilitating the judicial task of seeking to balance individual and collective interests, are presented. Key-words: Judiciary – Reform – Citizenship – New Rights

SUMMARY: 1. Introduction; 2. What/Which citizenship? 3. Citizenship in the Constitution; 4. Some remarks/notes on the Constitutional Amendment nr 45; 5. The “new rights” of the Brazilian citizen; Conclusion.

Introduction

The present article aims to shed some light on the topic that

has been developed in research, concerning the problem of achieving

citizenship in Brazil, its relationship with the national judicial1 reform,

and the way/form in which the modifications proposed by the 45th

Constitutional Amendment can be understood/comprehended in

relation with the need to implement the so called “new rights” 2 of the

* Doctor in Government (State Law) (UFPR), Master in Political Science (UFRGS). Professor and researcher at the Pontifícia Universidade Católica - PUC - RS. 1 AGRA, Walber de Moura (Coord.) et al., Comentários à Reforma do Poder Judiciário. Rio de Janeiro: Forense, 2005. 2 Note that the Federal Constitution, due to the influence of German constitutional theory, uses the term “Fundamental Rights” within the debate on human rights.

citizens3, seen herein as legal instruments in the judicial task of

balancing the individual and collective interests within the social

dynamic, implicit in the republican objective of promoting the well-

being of all, in accordance with the first part of the Inciso IV of the

third article of the Federal Constitution of 1988.

To achieve this, it is necessary to know the content of the 45th

Constitutional Amendment, which has produced extremely significant

modifications to the structure of the Judiciary, and that will

necessarily be reflected in the way in which judges will pautar their

actions in the near future. For the limits of this article4, we propose to

present and tecer considerations/ideas on only some of the points

contained in the 45th Amendment, those that we consider most

directly relevant to the achievement of citizenship in its broad/wide

sense. The points we detect are: a) the reasonable duration of the

case/process, b) the establishment of a Conselho Nacional de Justiça

- CNJ (National Council of Justice), c) the obligation that a candidate

for the position of judge proves to have been engaged in judicial

activities for at least years, d) the linkage effect of Direct Actions of

Unconstitutionality, e) Itinerant/Mobile Justice, f) the placing of

Crimes against Human Rights within the jurisdiction of the Federal

Justice System, g) the creation of specialist courts for fundiarias

matters/issues, and h) the autonomy of the Public Defenders.

Consequently, given that the achievement of the wide/broad

citizenship in a broad sense includes the “new rights”, or “citizen’s

rights”, which instrumentalize the balance between individual and

collective interests, which, in turn represent the constitutional task of

the Judiciary, we also propose highlight and comment on these

rights, in particular those of children and adolescents, women,

indigenous peoples, the problem of racism, the rights of the elderly, 3 See WOLKMER, Antonio Carlos and LEITE, José Rubens Morato (Orgs.) Os “Novos Direitos” no Brasil: natureza e perspectivas: uma visão básica das novas conflituosidades jurídicas. São Paulo: Saraiva, 2003. OLIVEIRA JÚNIOR, José Alcebíades (Org.). O novo em direito e política. Porto Alegre: Livraria do Advogado, 1997. 4 For a complete commented view of the EC nº45, see AGRA, Walber de Moura, et al. (Op. cit., nota 3).

consumer law/rights, environmental law/rights, biolaw and the impact

of the spread of information technology and the dynamic of a new

information society on the new rights. Finally, we propose to briefly

consider the sense in achieving citizens rights through the judicial

route, with its advantages and limitations, since one of the

assumptions/suppositions of common sense with regard the

achievement of such rights, which is typical of the dynamic of

transition of conception from a liberal State to a social State, is that

of the avoidance of/flight from this complex problem of social

transformation in Brazil and in Latin America, in which the

responsibility for achieving such rights is transferred, almost entirely

to the Judiciary alone. This arises/emerges as a problem5, as it

merely contributes towards strengthening the old idea of a systemic

autonomy of the law6, resulting in the traditional immobilist

responses – the Judiciary is not the place for innovation, but the

Legislature is – and also in an unnecessary and repetitive effect of

legitimization of judges and lawyers/judicial, passando-se ao largo de

efetivas mudanças na ação desses agentes, no sentido da

concretização dos direitos de cidadania7 no país.

2. Which citizenship?

The concept of citizenship, from the traditional juridical point of

view, and therefore Brazilian, is linked primarily with the condition of

living within a city, and by extension, within a country, so

demonstrating the effectiveness of residence. Accordingly, the

individual born within a national territory has natural citizenship and

can participate in the political life of the country, in contrast to the

foreign/er individual, in a special situation in the territory, but also

5 See SAAVEDRA, Giovani A. Jurisdição e Democracia: an analysis base don the theories of Jürgen Habermas, Robert Alexy, Ronal Dworkin and Niklas Luhman. Porto Alegre: Livraria do Advogado, 2006, p. 67. 6 LUHMAN, Niklas. Legitimação pelo Procedimento. Brasília: Editora da UnB, 1980, 202 p. 7 See FLICKINGER, Hans-Georg. Direitos de Cidadania: uma faca de dois gumes. In: Em nome da Liberdade: a critique of contemporary liberalism. Porto Alegre: EDIPUCRS, 2003, p. 153.

the holder of rights, though limited, including that of obtaining

Brazilian citizenship, denominated legal citizenship, though many

positions and rights remain reserved to the so-called born/native

citizens. This meaning of the word citizenship is, them, linked to the

exercise of political rights, such as voting and the right to stand for

election8. In this rather limited sense, it is common to cite the case of

illiterate individuals that become active citizens when registered as

voters, but are unable to become passive citizens as they are not

electable, which means they cannot stand for political office. Many

juridical conceptualizations close exactly at this point in the debate,

and so fail to offer a broader discussion of the concept.

How is it possible, then, to arrive at a broader concept of

citizenship? Today it is common to hear this expression used when

participation in the decision-making processes that affect the

collectivity are mentioned, especially before large popular

rallies/gatherings. The notion appears to be spreading, especially

through the media9, that citizenship is a kind of right to immunity

against authoritarian actions. At the same time, this problem remete

on the problem of income distribution, establishing, based on merely

economic criteria, an idea of hierarchical social “classes”, in reality

only two, one the holder of income, political power, and the good life

linked to these conditions, and the other “class” not only in relation to

these two factors, but to everything that affects the possession of

financial resources, such as housing, health, etc., and more

fundamentally, without access to suitable education and, therefore,

without access to the social life of a citizen10.

8 Cfe. FERREIRA FILHO, Manoel Gonçalves (op. cit., nota 10). 9 The social and politica role of the media is, therefore, quite questionable. See ROCHA, Álvaro F. O. Direito e Mídia: uma convivência difícil. In: Revista da AJURIS – Associação dos Juízes do Rio Grande do Sul. N°93, março de 2004, p.25. 10 The social and political role is of the media is, however, quite questionable. See ROCHA, Álvaro F. O. Direito e Mídia: uma convivência difícil. In: Revista da AJURIS – Associação dos Juízes do Rio Grande do Sul. N°93, março de 2004, p.25.

With due proportion, debate on this concept has existed since

the formation of the roots of European thought. While remembering

that the meaning of democracy in ancient Greece was not the same

as that given to the word today11, we can cite the work of Aristotle12,

in which the he questions who might be a citizen, stating that “a

citizen is that person who has a legal part in the deliberative

authority and in the judicial authority of the city”, given that the

Assembly in which the citizen participates has the power to decide as

well as legislate and judge. Participating in an assembly meant being

seen by others as one among equals, enabling the participant to

make use of the word in order to criticize, propose and give opinion,

transmitting by all means his concern/interest in the present and

future of the city. Similarly, it would be possible to assume positions

in the public administration, as part of the condition of being a

participant, while not meaning, in reality/truth that, he would have

rights that might limit the power of the Assembly, but merely that,

upon accepting to participate, he would also accept the duty of

submitting to decisions, in any meaning, that might be made by the

collective13. With the Romans the concept of citizenship (civitas) was

broadened, beginning with the recognition of pares/spouses and all

the other rights of civil life, including, in the private sphere, the rights

of property, family, contracts and, in the public sphere, the right to

political participation14.

At the beginning of the 18th century, however, the definition of

citizenship again became important, because as fruits of the

Enlightenment, the French Revolution and the Declaration of

Independence of the United States of America recognized the equality

of rights of all men, establishing the ideal of liberty as a basic concept

11 FINLEY, Moses I. Democracia antiga e moderna. Rio de Janeiro: Graal, 1988. 12 ARISTÓTELES. A Política. [Trad. Roberto Leal Ferreira]. São Paulo: Livraria Martins Fontes Editora, 1991. 13 Cfe. HABERMAS, Jürgen. A Inclusão do Outro. São Paulo, Edições Loyola, 2002, p. 272. 14 See GILISSEN, John. Introdução Histórica ao Direito. Lisboa: Calouste Gulbenkian, 1995, p. 82.

upon which all other rights would be established, as Kant15 was later

to state in his work. This author sought to base the Law upon liberty,

proposing the issue/problem of achieving harmony between individual

liberty and that of the others, which continues, therefore, in debate.

Habermas16 takes up the debate once more, in affirming that it is not

possible to achieve citizen rights without a sphere of liberty,

opposing, however, that this can only be opposed by the existence of

a community that holds means of political participation.

The broad concept of citizenship only comes to acquire the form

that we know today in the central countries with the establishment of

a new paradigm: the idea that there is a social element17 inserted

within this concept, which originates with the transition of the Liberal

State to the Social State, which occurred in Europe from the 19th

century to the beginning of the 20th century. This element included,

from minimum economic welfare/well-being to participation in the

social inheritance, and especially that of having the life of a civilised

being, in accordance with the standards of the current society; and

points to/indicates institutions more linked to this element such as

the public education system and social services. The effect of this

notion on social thought was to make it apparent that there is no

citizenship in a broad sense without the existence of a set of

democratic mechanisms, backed by a solid judicial order, which

permit the individual, or subject, to be included in all spheres of

social life.

It should be pointed out, however, that these historical facts

have had little effect in Brazil, and as a consequence, Brazilian law

firmly retains the traditional strict concept and, although many jurists

recognise the need to broaden the interpretation of the citizenship

15 Kant, Immanuel. Fundamentação da Metafísica dos Costumes. Lisboa: edições 70, 1995. 16 HABERMAS, Jürgen. Direito e Democracia: entre faticidade e validade. Rio de Janeiro: Tempo Brasileiro, 1997. p. 124. 17 MARSHALL, T.H. Cidadania, Classe Social e “Status”. Rio de janeiro, Zahar, 1969, p. 64.

rights18,in the country, it can be seen that the discussion on the

broad concept has not yet modified the legal texts, that continue

associating the term citizen mainly with political participation. This

terminological limitation, nevertheless, is unable to close the debate.

On the contrary, a sociological approach19 makes it possible to note

that, generalising the broad concept, it is likely that the legal texts,

and even the constitutional norm come to be adapted in the future,

as the resistance is in large part due to the particularities of the

legal/judicial field20, which even in order to maintain its legitimacy,

will find ways in which to adapt, appropriating the results of this

social dynamic within its dicourse21, coming to impose them

“normalising them” and making them implicitly understand with their

own, of always22.

3. Citizenship in the Constitution

The Brazilian Federal Constitution of 1988, however, does not

adopt a single sense for the term “citizenship”. The meaning/sense

given in the text can be strict, as described above, or broad, as was

attempted to show. In the former sense, it is restricted to the

condition of elector, by the exercise of the vote, or by candidature for

an elected political post. With the exclusive adoption of this sense,

the sceptical statements of some political scientists can be considered

well founded when they suggest that currently there is only

democracy on election day. This instrument is known as suffrage or

the vote. It is necessary to suppose that the citizens believe that

political representation will be exercised, that is, that the elected

18 See, for example, VIEIRA, Oscar Vilhena. Direitos Fundamentais.(op.cit., nota 12). 19 See ROCHA, Álvaro F. O. O Direito na obra de Pierre Bourdieu: os campos jurídico e político. In: Revista Estudos Jurídicos – UNISINOS. V. 38, n° 1, janeiro-abril 2005, p.46. 20 See ROCHA, Álvaro F. O. A linguagem jurídica. In: Sociologia do Direito: a magistratura no espelho. São Leopoldo, Ed. UNISINOS, 2002, p. 42. 21 BOURDIEU, Pierre. O que falar quer dizer. In: A Economia das Trocas Lingüísticas. São Paulo: Edusp, 1998. 22 BOURDIEU, Pierre. A força do Direito. In: O Poder Simbólico. Lisboa: DIFEL, 1983, p. 209.

representative will always place the interests of his/her electorate

above those of any other group or individual, including his/her own.

This belief is the basis of the legitimacy of the system, which places

puts the representative posts in a hierarchy, from Mayors and

councillors, who should act in the municipal chambers, to the

Governors and State Congressmen in the State Assemblies and

arriving at the Presidency of the Republic, Senators and National

Congressmen. The vote, then, is the “jurisdicisation” of the

citizenship, that by this means legitimates the State through its

system of democratic political representation23, without which this

would not be possible. This system is adopted by the Brazilian

constitution, which in this way also seeks an “educational” effect on

the population, given our authoritarian tradition and little affection for

democratic debate. The exercise of the vote has legal requirements,

such as Brazilian nationality, military service, a minimum age of 16

years in the case of optional vote, and 18 years in the case of the

compulsory vote. Some debate has arisen around the possibility of

making the vote non-compulsory, the risk of which have not been

sufficiently clarified. At the same time, the value of the vote is

relativised, as due to the limitation of the political representation of

each state within the National Congress (minimum of 8 and a

maximum of 70 congressmen), the most populous and developed

states find themselves artificially levelled to the least populous and

developed states, for which reason there are many hindrances and

problems faced by the national Legislative. The Law also establishes

the conditions for the candidature of the above mentioned political

positions, excluding illiterate individuals, and independent

candidatures. This means that each candidate must be affiliated to a

political party. Accordingly, the political parties are established as

agents of the social forces, having the duty to, independently of their 23 For a far from idealist view of this system, see BOURDIEU, Pierre. A representação política: elementos para uma sociologia do campo político. In: BOURDIEU, Pierre. O Poder Simbólico. Lisboa: DIFEL, 1989, p.163.

ideological positions, play the role of mouthpiece of the social

interests.

In the second sense, the broad concept of citizenship can be

seen as an entitlement of fundamental rights, the preservation of

dignity as a human being, and the participation in the political

processes, based on/supported/backed by reciprocal duties in relation

to the other citizens. These terms are not, however, referred to in the

constitutional text, which leaves the concept of citizenship open, of

the second clause of the first article of the Federal Constitution,

without conditioning it to any of the above mentioned requirements.

It is also necessary to note that, beyond the fundamental rights

foreseen in the 5th Article of the Constitution, and the material

conditions for the exercise of citizenship, it also depends on other

rights and obligations that, as mentioned above, seek to provide a

balance between the interests of each individual citizen and those of

the collectivity of citizens: the “new rights”, that we will deal with

below.

4. Some remarks regarding the Constitutional Amendment Nr

45/04

For years the proposal for a general reform of the judiciary has

been debated within the country, the theme even being considered as

a compulsory item to be dealt with by the Constituent National

Assembly, responsible for proposing and approving the then new

Federal Constitution of 1988, which in fact did not occur. On the

contrary, the most urgent changes were

duly/promptly/accurately/punctually dealt with, as points of

consensus, while some of the main points of controversy regarding

the reform were delayed/putt off/avoided, such as the establishment

of an external administrative control mechanism for this Power, and

facing up to the ethical, administrative and procedural problems

related to the slowness or morosity of the judicial services, with

particular emphasis on the proposal for jurisprudential linkage, the

so-called linkage summula. In 2004, the 45th Constitutional

amendment was finally passed, bringing with it a large number of

alterations, especially in relation to the Judiciary and the institutions

related to the administration of Justice.

Since then, it is legitimate to question the effects of those

modifications on the achievement of the “new rights” and, for the

achievement of citizenship in its broad sense, though it can be said

that little time has gone by, in legal/judicial and social terms, since

the legal implementation of the above mentioned modifications. At

the same time, due to the fact that many interests have been

affected, there are a number of points of view regarding the reform of

the Judiciary, and the manner in which the modifications proposed by

the 45th Constitutional Amendment relate to the need to implement

the so-called “new rights” 24.

Here, we seek to make some observations regarding the

modifications that we consider most relevant for the achievement of

citizen’s rights in Brazil, while not stressing that we do not seek to

exhaust the debate, as it is really very wide and complex in nature,

and also because it is not possible to fully explore the theme within

aq single article25.

The first theme that we deal with concerns the reasonable

duration of the judicial processes, that is established/contained in the

clause 78th (LXXVIII) of the Federal Constitution of 1988. Although

time limits are not established, because of practical

impossibilities/difficulties, the reasonableness concerns refer to the

idea that there cannot be any loss of sense/meaning or of procedural

objective due to excessive delay of the case/process. There is room 24 See WOLKMER, Antonio Carlos e LEITE, José Rubens Morato (Op. cit., nota 4). 25 For more detailed information on this specific topic, see AGRA, Walber de Moura (Coord.) et al., Comentários à Reforma do Poder Judiciário.(op. cit., nota3).

for great controversy, given that the time of the law26, and its need

to understand and ponder/consider ideas does not fit with the

perception of the accelerated world we live in today. There is also the

need for the legitimisation of the judicial/legal field and, therefore, of

the influence/strength of its agents27, who, by this mechanism tend

to reject any external pressure, forgetting that the legitimisation of

this group no longer occurs merely among public agents, but to a

great degree is conditioned upon the achievement of citizenship. This

means a Judicial service of quality, performed quickly/in due/good

time. The other measures contained within Constitutional Amendment

45/04, such as itinerant justice, decentralisation of the Federal

Regional Tribunals/Courts and Justice Tribunes/Courts, as well as the

creation of specialised courts for agrarian issues and the autonomy of

the Public Defenders, go along the same lines.

The creation of the National Council of Justice, in clause I-A of

article 92 of the Federal Constitution of 1988, represented a great

advance in institutional terms, given that the supervision of the

Judiciary was, until then, in the hands of the Judiciary itself, with all

the risks inherent in that type of situation. Many judges opposed the

establishment of this organ, alleging that it would undermine the

autonomy of the Judiciary, and would lead to political control of

judicial decisions. The corporativism contained in this discourse,

however, did not prevail, given the political context that included

some corruption scandals involving judges, which permitted that this

administrative and financial rationalisation measure entered the

statute books. It should be emphasised that it is not the role of the

National Council of Justice to interfere in the legal functions of the

judges, but to follow, so as to ensure the fulfilment of the functional

duties of the judges and that ethical standards are met. Although the

exact idea of what might be a suitable ethical standard for judges

26 See OST, François. O Tempo do Direito. Bauru, SP: EDUSC, 2005. 27 See BOURDIEU, Pierre. A força do Direito (op. cit., nota 29).

remains the subject of debate in Latin America28, and it is not the

main function of the National Council of Justice, it exhibits

role/functions along these lines. Its attributions include oversee the

legality of the administrative and financial acts of the Brazilian

Judiciary, as well as inspect the performance of the judges.

The requirement, contained in clause I of article 93 of the

Federal Constitution of 1988, that a minimum of three years of legal

activity be necessary in order to enter the magistracy is a healthy

measure that, though frequently attacked and delayed, corroborates

the democratic course of the judicial reform. The

opinions/thoughts/considerations regarding the “experience” 29

necessary in order to exercise the functions of a judge have been in

existence since antiquity, are repeated exhaustively among lawyers,

solicitors, and members of the Public Minister, and appear in detailed

surveys30. The lack of requirement went unnoticed prior to the

massification of education in Brazil, from the 1960s onwards, as the

small number of Bachelors in Law awarded each year and the very

high level required to pass, in the few Law schools ensured a more

mature profile among the candidates, and a greater number of

acceptances of candidates from traditional families, who had ignored

the legal requirements of age in order to ensure the effect of social

reproduction. However, with the enormous expansion in population in

Brazil during the same decade, the demands made on the Judiciary

naturally grew, and with it the demand for a larger number of judges.

Concurrently, this massification led to a brutal fall in the quality/level

of higher education, not only in Law, hindering still further the

acceptance of candidates with the minimum level of performance

required for the position of judge. The successive economic crises 28 See ZAN, Julio de. La ética, los derechos y la justicia. Montevideo: Fundación Konrad-Adenauer Uruguay, 2004. 29 It would be necessary to rescue the lost virtue of wisdom, so highly valued by the Greeks in the past, and that today is completely out of fashion: it consisted in knowledge tempered by experience over time and not merely filling out the memory. 30 See VIANNA, Luiz Werneck et al. Corpo e alma da magistratura brasileira. Rio de janeiro: REVAN, 1997.

during the 1970s and 80s also restricted the pool of options of the

recent entries into the universities, who began to prepare for public

examinations from a younger age in order to guarantee, immediately

following graduation, a place in the Judiciary, which represented a

position with a good financial and social prospects31. Thus, the

magistracy came to acquire an excessively young profile32 ,

inexperienced and frequently incompatible with the function33,

consonant with the standards of the Western judicial traditional34.

The result is that today it is possible to be a judge in Brazil at 23

years of age. At the same time, there is the problem of “nepotism”

within the Judiciary35, which appears with the occupation of position

of judge, though generations within the same family36, which also

represents a social strategy aimed at protecting the offspring

especially, but also the extended family and favoured individuals37

among the friends and family from the ferocious competition in the

restricted work market in the country. Fruit of the medieval view of

the State as private patrimony38, this remains a common practice,

contrary to democracy and the achievement of citizenship based on

31 The symbolic response/answer, in this case is the social “status”, and the material response/answer, money. See BOURDIEU, Pierre. As razões práticas: sobre a teoria da ação. Campinas – SP: Papirus, 1996, p.91. 32 See FARIA, José E., “Ordem legal x mudança social: a crise do Judiciário e a formação dos magistrados”. In FARIA, José E. (org.)In: Direito e justiça – a função social do Judiciário. São Paulo: USP, 1997. Furthermore, it is noted that there are other problems related to legitimacy: among some jurists/lawyers this generation of judges is referred to informally as the “nappy/daiper generation”. 33 This “novidade” had been noted by Platô in the 5th century BC, for whom “The judge should not be young, but aged”. See PLATO. República. Lisboa: Calouste Gulbenkian, 1990, III, 409 b. 34 See CAPPELLETTI, Mauro. Juízes Legisladores? Porto Alegre: Fabris, 1988. 35 This term is placed between inverted commas because its pejorative interpretation is not at all methodologically suited to scientific research. Its current meaning refers to “the practice of appointing relatives to public positions”. For further clarification, see ROCHA, Álvaro F. O. O Judiciário e o nepotismo. In: Sociologia do Direito: a magistratura no espelho. São Leopoldo, Ed. UNISINOS, 2002, p. 87. 36 Idem, nota 52. 37 See DA MATTA, Roberto. The family as value: non-familial remarks/considerations on teh Brazilian family. In: ALMEIDA, A.M. et al. (org.) Pensando a Família no Brasil: da colônia à modernidade. Rio de Janeiro: Espaço e Tempo/Editora da UFRJ, 1987. 38 See BOURDIEU, Pierre E PASSERON, Jean-Claude. La elección de los elegidos. In: Los herederos: los estudiantes y la

cultura. Buenos Aires: Siglo XXI Editores Argentina, 2003, p. 11 39 See BADIE, Bertrand and HERMET, Guy. Política Comparada, México: Fondo de Cultura Economica, 1993.

equality of opportunity among citizens. This aspect, nonetheless, is

ignored by those concerned and by most of the population, due to the

low level of education. It is necessary to observe that only a solid

education for democracy39 but, mainly, the establishment of a strong

market economy in the country, which would make private activity

more rewarding than positions within the State, will be capable,

perhaps, of modifying this manner of conceiving social relations in

Brazil, as well as the use of public patrimony. One of the indicators by

which it might be possible to perceive this change, should it occur,

would be the extinction of the so-called appointed posts in the

Brazilian public administration, at the municipal, state and federal

levels, and the adoption of the altruistic conception of the occupation

of public posts, which was never installed among us, in accordance

with its original European model40.

The introduction of the linkage effect in the Summuals of the

Federal Supreme Court, in article 103-a of the Federal Constitution of

1988, occurred as a result of the great pressure placed upon the

Judiciary due to slowness of its services, and high cost of its

administrative structure, among other problems. As a solution, many

jurists suggested establishing linkage between the rulings/decisions

made in the lower courts and those reached/recorded by the High

Courts. There was great controversy among the legislators and

judiciary, as this institution is not found within Brazilian judicial

tradition, though it appeared attractive as it seemed to offer hope of

“unblocking” the Judiciary, including the high Courts, of the excessive

number of cases related to themes upon which rulings had previously

been made. Approved as part of Constitutional Amendment nr 45/04,

it is fitting to remember, however, that such an institution is not

necessarily in line with the North American doctrine of stare decisis,

and appears to represent a step back in terms of classical

40 See AVRITZER, Leonardo. A moralidade da democracia. São Paulo: Perspectiva, 1996.

metaphysics. The cause of great debate, this measure may represent,

in this sense, a threat to the effective achievement of citizenship. The

situation remains unclear however, due to the short period since its

introduction.

Of the measures introduced in the Constitutional Amendment

45/05, Itinerant Justice and the decentralisation of the Regional

Federal Tribunals/Courts are of particular importance fro the

achievement of citizenship in the country, as they promise to break

the traditional inertia of the Judicial Power of the elite, making access

to judicial services much easier for the poor, while permitting some

members of the Judiciary and obliging others to have greater contact

with such citizens, who legitimate their functions and pay their

salaries, in order that such judges understand and attend to their real

needs. This project does not represent, however, only a policy of

bringing together Judiciary with isolated communities, but of creating

the expectation that an “educational effect” might occur among the

population, which would permit the bonds of social isolation to be

broken, so that they might become aware of their rights and, it is

hoped, of their duties as citizens.

The placing within the competence of the Federal Justice

System of cases of violation of human rights, contained in paragraph

5 of article 109 of the Federal Constitution of 1988, aims to fulfil the

constitutional commitments of the Brazilian State, in cases of serious

violation of human rights, attending to the fulfilment of obligations

contained within international treaties on human rights, for which the

country is severely criticised and harmed in terms of its image abroad

and consequent political and economic interests.

This measure has very positive repercussions for citizenship, as

it makes it possible to speed up and follow cases in a more neutral

manner, by limiting regional political influences and pressure.

The creation of specialised courts for agrarian issues, contained

in article126 of the Federal Constitution of 1988, also represents an

important step forward in institutional terms for the achievement of

citizenship, given that the problem of land reform has dragged on

over the decades without solution. Free of other demands, the judge

acting in this area will be able to be fully aware of the historical and

social context involved in the agrarian issue, which is based on the

entry within the constitutional text of the conception/interpretation of

the “social function of property”, which relativises the traditional

concept of property and, therefore, requires that it be

reconsidered/reviewed/re-assessed in completely different terms,

that is, in the sense of achieving the Democratic State of the Rule of

Law, which necessarily supposes the achievement of citizenship, in its

broad sense.

The financial autonomy of the Public Defenders (Legal Aid),

found in paragraph 2 of article 134 of the Federal Constitution of

1988, is one of the most positive measures for the achievement of

citizenship in its broad sense. Those citizens of little or no financial

resources are normally the most penalised by the

indifference/negligence of public agents, and often suffer losses or

even injustice in court cases because the are unable to pay for

private lawyers. In Brazil the situation is no different. The

establishment of the Public Defenders (Legal Aid) allows such citizens

to break through this barrier, and with the new financial autonomy,

the financial resources available should increase and with it the reach

and strength of this organ. Furthermore, with this measure it has

acquired greater protection against the direct or indirect interference

of agents from other organs of the State.

The elements of the Brazilian Judicial reform reviewed up to

here, are of particular importance as, from our point of view, they

can most collaborate towards the achievement of citizenship in the

broad sense in Brazil. However, it is not an overstatement to say that

the text of the reform as a whole has this objective, as the Judiciary

acquires more elements at its disposal that allow its agents to remain

focused on the their social function. However, in order to complement

this theme remains necessary to examine the “new rights”, the

development of which complement the contents of articles 5 and 6 of

the Federal Constitution of 1988, allowing, as stated above, the

individual interests of each citizen to be balanced with the interests of

the collective. It is not our intention to analyse them fully, for reasons

of space, and also because each one of them constitutes in itself a

new area of study, not merely juridical/legal but in all the social

sciences.

5. The “new rights”41 of citizenship in Brazil

The rights referred to here, which can also be included among

the so-called “human rights”, arise from the Federal Constitution of

1988, having been elaborated and proposed based upon a new view

of the State, that emerges from the displacement of the Liberal State

by the Social State. Although this transition among us encounters

many real obstacles, besides those that are properly juridical42, the

struggle for the introduction of these rights in the social and political

culture of Brazil is a fundamental part of the achievement of

citizenship, in which the Judiciary has a central role to play in guiding

this dynamic. Accordingly, we refer to those “new rights” that we

consider most relevant, which are the following: the rights of children

and adolescents, women’s rights, indigenous people’s rights, the

problem of racism, the rights of the elderly, consumer law/rights,

environmental law/rights, biolaw and the impact of the spread of

information technology and the dynamic of a new information society

on the new rights. It is true that a thorough/fuller/better approach to

these areas of law using the juridical dogma would require a review 41 See BADIE, Bertrand. L´État Importé. Paris: Fayard,1992. Referimos esse direitos entre aspas, pelo fato de muitos deles serem reivindicações antigas, e já estarem presentes no ordenamento jurídico nacional há anos, o que não significa, necessariamente, que tenham sido plenamente implementados. 42 These rights are referred to between inverted commas, due to the fact that many of them constitute old demands/claims, and have been in the national legal order for years, which necessarily means that they have been fully implemented. See CARVALHO, José Murilo de. Cidadania no Brasil: o longo caminho. Rio de janeiro: Civilização Brasileira, 2002.

of the theory of law43, the discussion of which, however, would not fit

in the limited space of this article.

Firstly, in referring to the rights of children and adolescents, we

can note that this does constitute a new right, as, since Brazil’s

independence there has been legislation, organs and public agents

dedicated to the subject. The relevance of the theme for the

achievement of citizenship is explained in detail in Law nr 8.069/90,

elaborated from the criteria/principiology adopted by the Federal

Constitution of 1988, we emphasize the doctrine of full protection44,

which means the option for the maintenance of special specific rights,

given that we are dealing with citizens in development and, therefore,

worthy of special attention not only from the Judiciary, but in all

aspects.

Women’s rights, which are still fragile in Brazil, arise from the

attempt to put into effect the constitutional principle of equality

before the Law/of rights. In historical and sociological terms, it can be

seen that the rupture with the traditional division of social roles

inherited from the western Judo-Christian tradition is very difficult.

The Brazilian constitutional and infra- constitutional legislation only

very slowly adopted the modifications that would culminate in the

equality currently existing in the judicial arrangement/order45, and

lead to the Judicial concern with the issue. It should be pointed out,

however, that social behaviour is altered by the modification of the

law, and much has yet to be done with respect the rights of women in

Brazil.

The topic of indigenous people’s rights is particularly relevant in

Brazil, as, since the period of the Portuguese colonisation there has

43 See CARVALHO, José Murilo de. Cidadania no Brasil: o longo caminho. Rio de janeiro: Civilização Brasileira, 2002. 44 See WOLKMER, Antonio Carlos e LEITE, José Rubens Morato (Orgs.) Introdução aos fundamentos de uma nova teoria dos “novos direitos” In: WOLKMER, Antonio Carlos e LEITE, José Rubens Morato (Orgs.) Os “Novos Direitos” no Brasil... (op.cit., nota 4).Ver VERONESE, Joseane R. P. Os Direitos da Criança e do Adolescente. São Paulo: LTr, 1999. 45 See Ver VERONESE, Joseane R. P. Os Direitos da Criança e do Adolescente. São Paulo: LTr, 1999.

been concern with disciplining the relations with the native peoples,

though in the sense of organisation of the Portuguese colonial

society, with no interest in the establishment of rights or in the

cultural specificities of these peoples46. Later legislation, prior to the

Federal Constitution of 1988, dealt with the topic, but always with the

view of the Indian in a position of inferiority. With the new

Constitution, however, these views were modified, especially with the

aim of assimilating the native peoples, recognising their right to “be

different” 47, a relevant aspect of the Judiciary. Nevertheless, the

tradition of Brazilian State in dealing with these peoples is still very

retrograde/backward, and as a consequence, impedes the effective

application of this new posture, which also depends on social maturity

and the adoption of public policies, primarily in education, for a

citizenship that highlights the recognition of the indigenous peoples,

their rights and differences.

The problem of racism in Brazil encounters similar problems, in

its specificity, also linked to the Brazilian social tradition, until

recently based on slavery, therefore accustomed to the notion of

differentiation and privileges of social groups, as well as with a racial

aspect48. With the Federal Constitutions of 1988, the attempt to

implement affirmative actions, such as the policy of quotas49, has

produced great controversy, with radical arguments on both sides.

There appears to be, however, concern not to repeat the proposals

that are legally/judicially unsustainable, and that have already failed

in other countries50, and which would seem to have little chance of

46 See TABAK, Fanny, and VERUCCI, Florisa. (Orgs.) A difícil igualdade – os direitos da mulher como direitos humanos. Rio de Janeiro: Relume-Dumará, 1994. 47 See CUNHA, Manuela Carneiro (Org.) História dos Índios no Brasil. São Paulo: Companhia das Letras, 1992. 48 See SOUZA FILHO, Carlos Frederico. O renascer dos povos indígenas para o direito. Curitiba, Juruá, 1999. 49 See SKIDMORE, Thomas E. Raça e nacionalidade no pensamento brasileiro. Trad. Raul de Sá Barbosa. Rio de Janeiro: paz e Terra, 1976. 50 See SILVA JR. Hédio. Anti-racismo: coletânea de leis brasileiras: federais, estaduais e municipais. São Paulo: Editora Oliveira Mendes, 1998. See BARZOTTO, Luis Fernando. Justiça social: gênese, estrutura e aplicação de um conceito. In: Direito e Justiça – Revista da Faculdade de Direito da PUCRS. V. 28 – ano XXV – 2003/2, p.109.

success in Brazil. Nowhere is the topic a simple one, and specific

studies are required for the specific51 reality of each country. On the

other hand, within the Brazilian tradition of cultural importation, and

possibly due to the lack of domestic literature on the subject, it is

possible to identify, in the few locally produced material published on

the subject currently available, traces of the influence of categories of

foreign thinking, especially that of North American authors, which are

not suited to the Brazilian case. It can be seen that the publication

and distribution of such literature in Brazil appears to be leading to

the importation of a discourse based “racial hatred” that is implicit in

these works, as it results from the intolerance characteristic of that

society, directed also at other ethnic groups, and not only towards

Afro-Americans. Brazilian racism is disguised, but not violent; it does

not contain, and does not need this element, that, nonetheless, has

been maliciously propagated by non-governmental organisations and

some politicians, apparently with the aim of gaining financial and

electoral benefits. Jurists, congressmen and intellectuals should be

aware, as the lack of both public debate and an extensive national

academic research into the subject, it appears to us, can lead to the

“invention” of non-existent conflicts, and greatly impede the

enhancement of social and juridical relations in racial terms in the

country.

The rights of the elderly became a reality with their adoption in

the text of the Federal Constitution of 1988. The Brazilian social

behaviour in relation to the elderly remains barely civilised, as there

has never been in our history a real concern with the aged, and until

recently the number of young people was large and always growing,

leading the subject to be forgotten, which appears to be new among

us. The recognition of the problem, following the constitutional

51 See BARZOTTO, Luis Fernando. Justiça social: gênese, estrutura e aplicação de um conceito. In: Direito e Justiça – Revista da Faculdade de Direito da PUCRS. V. 28 – ano XXV – 2003/2, p.109. See BARZOTTO, Luis Fernando. Justiça social: gênese, estrutura e aplicação de um conceito. In: Direito e Justiça – Revista da Faculdade de Direito da PUCRS. V. 28 – ano XXV – 2003/2, p.109.

guidelines/guidance, led to the passing of a new Law, known as the

Statute of the Elderly, which aims to objectify the constitutional

guidance on the subject52. It is worth noting, however, that the

Brazilian population is reproducing itself at a slower rate53, and aging

considerably. This makes this right an important subject for reflection

by the Judiciary, and a relevant point to be developed and introduced

into the social and juridical/judicial/legal culture of the country.

Consumer Rights is one of the main “new rights” that came into

being with the Federal Constitution of 1988, well worked/elaborated

by the national doctrine and by jurisprudence, it has been

consolidated, by the Law 8.078/90, the “Consumer Code”, as an

instrument for the enhancement of the social and juridical relations of

consumption, which characterise complex modern societies, and

which represents a difficult subject, but one which it is necessary to

understand. Many authors note that today the population considers

consumption to be a major factor of social inclusion54. This definition

is extremely perverse in which the majority of the population are

poor, such as in Brazil. Being a citizen would mean having access to

consumption, which exposes the great part of the population,

unwittingly, to search for false satisfaction through the most

pathological aspect of capitalism, consumption55. It is in this sense

that the necessity to understand the relations of consumption and

their meaning for the State has led to the development of research

areas related to the subject, not only among jurists, but also among

anthropologists, sociologists and economists, as well as the

52 See BERTULIO, Dora Lucia de Lima. O “novo” direito velho: racismo e direito. In: WOLKMER, Antonio Carlos e LEITE, José Rubens Morato (Orgs.) Os “Novos Direitos” no Brasil... (op.cit., nota 4). 53 See RAMOS, Paulo Roberto Barbosa. Fundamentos Constitucionais do direito à velhice. Florianópolis: letras contemporâneas, 2002. See BERQUÓ, Elza. Algumas considerações demográficas sobre o envelhecimento da população no Brasil. In: Anais do I Seminário Internacional Envelhecimento Populacional: uma agenda para o final do século. Brasília: MPAS/SAS, 1996, p.16-34. 54 See BERQUÓ, Elza. Algumas considerações demográficas sobre o envelhecimento da população no Brasil. In: Anais do I Seminário Internacional Envelhecimento Populacional: uma agenda para o final do século. Brasília: MPAS/SAS, 1996, p.16-34. 55 See HIRSCHMAN, Albert. De consumidor a cidadão. São Paulo: Brasiliense, 1983.

development of transdisciplinary research. Of particular interest

today, in Brazil is a new research subject, Consumer Education56,

which is concerned with the problem of the awareness of the citizen

consumer, not only with regard their rights, but in relation to the

formation of the awareness of their real needs, in contrast to the

discourse of consumer media, which favours the profitable

consumism fo the firms and the collection of taxes, but which is

frequently harmful to the citizen. The subject is new in local terms

and needs considerable further development.

Environmental Law has also become an extremely important

subject among the “new rights/laws”, as it has become

practice/practical and necessary to develop social awareness of the

need to conserve the vast environmental patrimony of the country.

The discussion/topic is not new, but it is also highlighted in the

Federal Constitution of 1988. The emergence of this

issue/discussion/topic and, consequently its juridical/legal

objectivation is also linked to the deception of the new generations

with the traditional state and religious answers/responses in relation

to the social dynamic57. Accordingly, conserving the environment is

also to conserve a part of our humanity, especially against the

national and world capitalist vortex that justifies the destruction of

the natural and human environment by the increase in political and

financial profit58. In order to avoid that the Law becomes an

instrument of restraint or regression in the environmental issue is,

therefore, a fundamental task of the Judiciary59. It is particularly

important among us, for its great capacity to form citizens aware of

56 See CANCLINI, Nestor Garcia. Consumidores e cidadãos: conflitos multiculturais da globalização. Rio de Janeiro; Ed. Da UFRJ, 1996. 57 SENGER, Viviane. Educação e Cidadania no consumo: na busca de saberes docentes. UNISINOS, dissertação de mestrado, 2005, mimeo. 58 See OST, François. A natureza à margem da lei: a ecologia à prova do direito. Lisboa: Piaget, 1997. 59 CAUBET, Christian Guy. A irresistível ascenção do comércio internacional: o meio ambiente fora da lei? Revista Seqüência, v.39, dez. 1999, p. 58. SANCHES, Sydney. O Poder Judiciário e a tutela do meio ambiente. Arquivos do Ministério da Justiça. Brasília: Subsecretaria de Edições Técnicas, n°47, jan/jun 1994. p. 171.

the need for a solution that allows the environment to be conserved

today for future generations.

The so-called bio-law/right brings to light within the Brazilian

juridical/legal environment the debate on the ethics in relation to

human life60, as a result of the problems arising from the

development of genetic research and the advance of health

procedures for the preservation of life. This new branch seeks to

develop a new assessment of the social role of science and

technology61, raising questions regarding the basic rules of

democracy, while seeking to confront the rule of the majority, in this

precise case62. Issues such as euthanasia, the use of human embryos

in research, and other extremely controversial issues are worthy of

their attention, as discussion on such subjects instrumentalises the

Judiciary, making it possible to advance towards the achievement of

citizenship in the broad sense.

Finally, the repercussions of the diffusion of information

technology and of the dynamic of the new information society on the

new rights are highlighted. The notion of the network of information,

today known as the internet is already part of the public domain in

Brazil63, but its juridical implications, and its consequences for the

citizenship are not clear64. There is talk, for example about “digital

inclusion”, as it would be fundamental for the citizen to have access

to the internet/network, because of its power to inform and clarify.

On the other hand, the same internet/network is instrumental in

inciting the practice of offences/crimes, which makes it ambiguous in

this sense65, hence a great deal of attention is required on the part

60 SANCHES, Sydney. O Poder Judiciário e a tutela do meio ambiente. Arquivos do Ministério da Justiça. Brasília: Subsecretaria de Edições Técnicas, n°47, jan/jun 1994. p. 171. BERNARD, Jean. Da biologia à ética. Campinas: Psy II, 1994. 61 BERNARD, Jean. Da biologia à ética. Campinas: Psy II, 1994. BUNGE, Mario. Ética, Ciencia y Técnica. Buenos Aires; Editorial Sudamericana, 1996. 62 BUNGE, Mario. Ética, Ciencia y Técnica. Buenos Aires; Editorial Sudamericana, 1996. 63 OLIVEIRA, Fátima. Bioética: uma face da cidadania. São Paulo: Moderna, 1997. 64 CASTELS, Manuel. A Sociedade em rede. São Paulo: Paz e Terra, 1999. 65 FILHO, Adalberto. (Coord.) Direito e Internet: aspectos jurídicos relevantes. São Paulo: Edipro, 2000.

of society and in particular the Judiciary. More studies are required

within the country in order to clarify the relationship between this

technology and the public interest, in order that its characteristic as a

service is placed always in favour of the achievement of citizenship.

Conclusion

In the present article we have proposed/attempted to present

the issue/dilemma of achieving citizenship in Brazil in its broad sense,

through the perspective of the new constitutional role of the national

Judiciary, beginning with its reform, through achievement of the “new

rights/laws”. This is a very extensive subject, as the research that

gave origin to this article is destined to be used in a number of

papers, since they arise, as we believe we have shown, numerous

highly complex debates, for which it would be necessary a great deal

more time and dedication. We begin with the need to have present in

the juridical world, the notion that it is no longer possible to limit

citizenship to the strict concept, in the legal texts, but to understand

that its achievement in the broad sense is of fundamental

importance. This has implications for the understanding of the

constitutional fundamentals, and also in the social consequences of

the action of the State through its public policies, and through the

clear action of its agents, in this case the judges, but also all the

other public agents. Therefore, the fundamental role of democratic

political environment has been highlighted, without which this

objective would be impossible. It is necessary to understand the

reach of the democratic life in all this dimensions, among which the

juridical dimension is central. Accordingly, the constitutional aspect of

citizenship should be taken as a programme of social

achievement/accomplishment/performance. The idea needs to be

HINDLE, John. A internet como paradigma: fenômeno e paradoxo. Rio de Janeiro: Expressão e Cultura, 1997.

established, especially among jurists, that the achievement of rights

on paper means nothing: what is written/penned on paper or in

electronic files as legislation are merely ideas for standards of

behaviour. Furthermore, it is necessary to develop the awareness

that only human social action modifies reality in all its aspects. The

role of the Judiciary, then, gains importance/comes into high relief,

because of he force of the State represented by the judges. The

mechanisms of complacency of the agents that have permitted many

to neglect/avoid their social role need to done away with. It is with

this aim that the 45th Constitutional Amendment has been analysed,

with regard the aspects considered pertinent to the achievement of

citizenship, while noting that the content of the reform of the

Judiciary is directed along these lines. Nevertheless, the focus of this

new Judicial instrument is directed, in this initial stage of the dynamic

of the construction of citizenship in its broad sense in the country, to

the achievement of “Human Rights”, or of citizenship, here referred

to as the “new rights”. We believe that we have made it clear that

this objective is not accomplished with achievement of these rights,

but presupposes an extensive social transformation, in the sense of

the maturing of Brazilians as citizens, among whom the judges and

other jurists find themselves. We would like to note, however, though

laterally, that there is no sense in seeking social development without

emphasising that it is only possible with an economic development

that incorporates social justice, especially distribution of income. In

this sense, reform of the economy means permitting the growth of

the private work market, doing away with the State monopoly of the

function of offering the best positions and salariesin the job market.

This modification, that is lowly taking place, leads to real

development of the population, which achieves the conditions to

mature it needs, without the permanent nannying/tutelage of a body

of public agents, who can and should be concerned with the higher,

more complex, levels of the social dynamic, which are not achievable

among people with little or no education, who can aspire to only the

most basic levels of citizenship.

It needs to be remembered, still, that to place the

responsibility for achieving citizenship in the broad sense entirely with

the Judiciary, is to limit its possibilities for development, since, as

noted above, the judiciary is primarily an state agency for the

resolution of conflicts and maintenance of rights, with very little room

for innovation, the social space for which is in fact, the Legislative,

as it acts in the name of the population. The action of the Judiciary

for the achievement of citizenship is fundamental, Yet, this process

also demands the maturing of the society as a whole, and results

from the raising of the level of awareness of its citizens, mainly

through better economic and, consequently, educational conditions.

References

AGRA, Walber de Moura (Coord.) et al., Comentários à Reforma do Poder Judiciário.

Rio de Janeiro: Forense, 2005.

ARISTÓTELES. A Política. [Trad. Roberto Leal Ferreira]. SP: Livraria Martins Fontes Editora, 1991. AVRITZER, Leonardo. A moralidade da democracia. São Paulo: Perspectiva, 1996. BADIE, Bertrand e HERMET, Guy. Política Comparada, México: Fondo de Cultura Economica, 1993. _______,. L´État Importé. Paris: Fayard,1992. BARCELLONA, Pietro L’uso alternativo del diritto. Ed. Laterza, Roma-Bari, 1973. BARZOTTO, Luis Fernando. Justiça social: gênese, estrutura e aplicação de um conceito. In: Direito e Justiça – Revista da Faculdade de Direito da PUCRS. V. 28 – ano XXV – 2003/2, p.109. _______,. A Democracia na Constituição. São Leopoldo: Ed. UNISINOS, 2003. BENEVIDES, Maria Victória M. Reforma Política e Cidadania. SP: Ed. Perseu Abramo, 2003, p. 91. _______,. A Cidadania Ativa: referendo, plebiscito e iniciativa popular. São Paulo: Ática, 2003. BERNARD, Jean. Da biologia à ética. Campinas: Psy II, 1994. BERQUÓ, Elza. Algumas considerações demográficas sobre o envelhecimento da população no Brasil. In: Anais do I Seminário Internacional Envelhecimento Populacional: uma agenda para o final do século. Brasília: MPAS/SAS, 1996, p.16-34. BERTULIO, Dora Lucia de Lima. O “novo” direito velho: racismo e direito. In: BOBBIO, Norberto. Qual Socialismo? São Paulo: Paz e Terra, 1983. BOURDIEU, Pierre. O que falar quer dizer. In: A Economia das Trocas Lingüísticas. SP: Edusp, 1998. _______, A força do Direito. In: O Poder Simbólico. Lisboa: DIFEL, 1983, p. 209.

_______, A opinião pública não existe. In Questões de sociologia. RJ: Marco Zero, 1983, p. 173. _______,. A representação política: elementos para uma sociologia do campo político. In: BOURDIEU, Pierre. O Poder Simbólico. Lisboa: DIFEL, 1989, p.163. _______,. Sobre a Televisão. Rio de janeiro: Jorge Zahar Ed., 1997. _______,As razões práticas: sobre a teoria da ação. Campinas – SP: Papirus, 1996, p.91. _______, PASSERON, Jean-Claude. La elección de los elegidos. In: Los herederos: los estudiantes y la cultura. Buenos Aires: Siglo XXI Editores Argentina, 2003, p. 11. BUNGE, Mario. Ética, Ciencia y Técnica. Buenos Aires; Editorial Sudamericana, 1996. CANCLINI, Nestor Garcia. Consumidores e cidadãos: conflitos multiculturais da globalização. Rio de Janeiro; Ed. Da UFRJ, 1996. CAPPELLETTI, Mauro. Juízes Legisladores? Porto Alegre: Fabris, 1988. CARVALHO, A.B. A lei. O Juiz. O justo. AJURIS: Porto Alegre, v. 39, p. 132, mar. 1987. CARVALHO, José Murilo de. Cidadania no Brasil: o longo caminho. RJ: Civilização Brasileira, 2002. CASTELS, Manuel. A Sociedade em rede. São Paulo: Paz e Terra, 1999. CAUBET, Christian Guy. A irresistível ascensão do comércio internacional: o meio ambiente fora da lei? Revista Seqüência, v.39, dez. 1999, p. 58. CUNHA, Manuela Carneiro (Org.) História dos Índios no Brasil. São Paulo: Cia das Letras, 1992. DA MATTA, Roberto. A família como valor: considerações não-familiares sobre a família à brasileira. In: ALMEIDA, A.M. et al. (org.) Pensando a Família no Brasil: da colônia à modernidade. Rio de Janeiro: Espaço e Tempo/Editora da UFRJ, 1987. FARIA, José E., “Ordem legal x mudança social: a crise do Judiciário e a formação dos magistrados”. In _______, (org.)In: Direito e justiça – a função social do Judiciário. São Paulo: USP, 1997. _______, “Ordem legal x mudança social: a crise do Judiciário e a formação dos magistrados”. In _______, (org.)In: Direito e justiça – a função social do Judiciário. São Paulo: USP, 1997. FERREIRA FILHO, Manoel G. Curso de Direito Constitucional. 22 ed. Atual. SP, Saraiva, 1995, p. 99. FILHO, Adalberto. (Coord.) Direito e Internet: aspectos jurídicos relevantes. São Paulo: Edipro, 2000. FINLEY, Moses I. Democracia antiga e moderna. Rio de Janeiro: Graal, 1988. FLICKINGER, Hans-Georg. Direitos de Cidadania: uma faca de dois gumes. In: Em nome da Liberdade: uma crítica ao liberalismo contemporâneo. Porto Alegre: EDIPUCRS, 2003, p. 153. GARCIA PELAYO, Manuel. Las transformaciones del Estado contemporáneo, 4 ed. Madrid: Alianza, 1996. GILISSEN, John. Introdução Histórica ao Direito. Lisboa: Calouste Gulbenkian, 1995, p. 82. HABERMAS, Jürgen. A Inclusão do Outro. São Paulo, Edições Loyola, 2002, p. 272. _______,Direito e Democracia: entre faticidade e validade. RJ: Tempo Brasileiro, 1997. p. 124. HINDLE, John. A internet como paradigma: fenômeno e paradoxo. RJ: Expressão e Cultura, 1997. HIRSCHMAN, Albert. De consumidor a cidadão. São Paulo: Brasiliense, 1983. IBAÑEZ, “Para uma practica judicial alternativa” in Annales de la Cátedra. F. Suárez, 1976, 16, p.155. KANT, Immanuel. Fundamentação da Metafísica dos Costumes. Lisboa: edições 70, 1995. KELSEN, Hans. Essência e Valor da Democracia. São Paulo: Martins Fontes, 1993.

LUHMAN, Niklas. Legitimação pelo Procedimento. Brasília: Editora da UnB, 1980, 202 p. MARSHALL, T.H. Cidadania, Classe Social e “Status”. Rio de janeiro, Zahar, 1969, p. 64. OLIVEIRA, Fátima. Bioética: uma face da cidadania. São Paulo: Moderna, 1997. OLIVEIRA JÚNIOR, José Alcebíades (Org.). O novo em direito e política. Porto Alegre: Livraria do Advogado, 1997. OST, François. O Tempo do Direito. Bauru, SP: EDUSC, 2005. _______,. A natureza à margem da lei: a ecologia à prova do direito. Lisboa: Piaget, 1997. PLATÃO. República. Lisboa: Calouste Gulbenkian, 1990, III, 409 b. RAMOS, Paulo Roberto Barbosa. Fundamentos Constitucionais do direito à velhice. Florianópolis: Letras contemporâneas, 2002. ROCHA, Álvaro F. O. Direito e Mídia: uma convivência difícil. In: Revista da AJURIS – Associação dos Juízes do Rio Grande do Sul. N°93, março de 2004, p.25. _______,. e SILVEIRA, Gabriel E. O trabalho jurídico como violência simbólica in Estudos Jurídicos, UNISINOS. São Leopoldo: v. 38, nº2, maio-agosto 2005, p.66. _______,O Direito na obra de Pierre Bourdieu: os campos jurídico e político. In: Revista Estudos Jurídicos – UNISINOS. V. 38, n° 1, janeiro-abril 2005, p.46. _______,. A linguagem jurídica. In: Sociologia do Direito: a magistratura no espelho. São Leopoldo, Ed. UNISINOS, 2002, p. 42. _______,. O Judiciário e o nepotismo. In: Sociologia do Direito: a magistratura no espelho. São Leopoldo, Ed. UNISINOS, 2002, p. 87. ROUSSEAU, Jean-Jacques. O Contrato Social. São Paulo: Martins Fontes, 1999. SAAVEDRA, Giovani A. Jurisdição e Democracia: uma análise a partir das teorias de Jürgen Habermas, Robert Alexy, Ronal Dworkin e Niklas Luhman. Porto Alegre: Livraria do Advogado, 2006, p. 67. SANCHES, Sydney. O Poder Judiciário e a tutela do meio ambiente. Arquivos do Ministério da Justiça. Brasília: Subsecretaria de Edições Técnicas, n°47, jan/jun 1994. p. 171. SENGER, Viviane. Educação e Cidadania no consumo: na busca de saberes docentes. UNISINOS, Dissertação de Mestrado, 2005, mimeo. SILVA JR. Hédio. Anti-racismo: coletânea de leis brasileiras: federais, estaduais e municipais. São Paulo: Editora Oliveira Mendes, 1998. SKIDMORE, Thomas E. Raça e nacionalidade no pensamento brasileiro. RJ: Paz e Terra, 1976. SKINNER, Quentin. As Fundações do Pensamento Político Moderno. São Paulo: Cia das Letras, 1996. SOUZA FILHO, Carlos Frederico. O renascer dos povos indígenas para o direito. Curitiba, Juruá, 1999. TABAK, Fanny, e VERUCCI, Florisa. (Orgs.) A difícil igualdade – os direitos da mulher como direitos humanos. Rio de Janeiro: Relume-Dumará, 1994. THOMPSON, J. B. O escândalo político: poder e visibilidade na era da mídia. Petrópolis, Vozes, 2002. VERONESE, Joseane R. P. Os Direitos da Criança e do Adolescente. São Paulo: LTr, 1999. VIANNA, Luiz Werneck (et al.) A judicialização da política e das relações sociais no Brasil. Rio de janeiro: REVAN, 1999. _______,et al. Corpo e alma da magistratura brasileira. Rio de janeiro: REVAN, 1997. VIEIRA, Oscar Vilhena. Direitos Fundamentais: uma leitura da jurisprudência do STF. São Paulo: Malheiros, 2006, p.628. WOLKMER, Antonio Carlos. Introdução aos fundamentos de uma nova teoria dos “novos direitos” In: _______, e LEITE, José Rubens Morato (Orgs.) Os “Novos Direitos” no Brasil: natureza e perspectivas: uma visão básica das novas conflituosidades jurídicas. São Paulo: Saraiva, 2003.

ZAN, Julio de. La ética, los derechos y la justicia. Montevideo: Fundación Konrad-Adenauer Uruguay, 2004