Carlos Portugal Gouvêa

Beyond Legal Formalism in Brazil: The Law & Poverty Group Experience

Efforts in legal education have been made to adapt the curriculum, teaching methodologies, and materials to bring students attention to the matters concerning the linkages between poverty, inequality, human rights, and development. In Latin America, due to its socio and economic realities, these efforts are permanently required. The present research aims at exploring and documenting the experience of the Law & Poverty Group, founded in 2006 at the University of São Paulo Law School. More specifically, this paper discusses the implementation of the Law & Poverty Group approach of three interlocking cycles (formation, investigation, and intervention), considering its teaching methodologies, and multidisciplinary materials, which focuses on legal, historical, and institutional perspectives to address effectively the challenge of poverty and inequality. By analyzing its publications and interviewing its current and previous members, ultimately, the purpose of this paper is to postulate reproducing patterns of the Law & Poverty Group experience, so it can be replicated, with adaptations, throughout Latin America and the Global South, spreading critical legal thinking and action in unequal countries. This paper is structured in following three parts. First, it presents the creation of the Law & Poverty Group and its themes related to Legal Structuralism and the required multidisciplinary approach. Second, it presents how the conductive learning is applied in the Law & Poverty Group, enabling students to actively participate in discussions, critically understand Brazilian problems, and creatively produce solutions pulling away compensatory measures, blind legal transplants and one-size-fits-all models. Following, it presents LPG’s projects, focusing on three initiatives: a book, a case, and a database. Finally, it presents the Law & Poverty Group perspectives for the future, and what it is in for the next ten years.

Social Rights against the Poor

The main argument of this work is that the discourse of social and economic rights in Brazil has been appropriated by privileged economic groups with the result that the constitutional protection of those rights is no longer carrying out its function to reduce economic inequality. This article will be divided into three parts. The first is a discussion of the historic context of patrimonialism in Brazil as well as the origins of economic inequality in the country. The second part is devoted to the theoretical debate surrounding the constitutional protection of social and economic rights in light of what is often referred to as “new constitutionalism,�? along with an interpretation of the structure for protecting social and economic rights that is present in the Brazilian constitution. The third part consists of a case study of the current state of the judicialization of the right to health in Brazil, with special attention to free concession of medicine and the new legislation on the subject. In conclusion, the paper will discuss the parameter that is the most adequate for deciding individual lawsuits related to social and economic rights, as well as certain conclusions stemming from the case study that can be applied to constitutional theory as a whole.

Supremacia Presidencial e Democracia na América Latina: Introduzindo o Tema da Desigualdade Social no Desenho Institucional (Presidential Supremacy and Democracy in Latin America: Introducing the Problem of Social Inequality in Institutional Design)

Portuguese Abstract: Este artigo discute a pressuposição de que os sistemas presidenciais na América Latina são propensos à corrupção porque concentram muito poder nas mãos dos presidentes. Um argumento comum nas teorias do desenvolvimento contemporâneas é o de que tal concentração de poder discricionário gera corrupção em razão do Executivo ter a capacidade de negociar livremente com agentes privados oportunidades para extração de rendas indevidas. Desta forma, uma visão simplista deste problema seria que ao reduzir-se o poder discricionário do Executivo, reduzir-se-ia também a corrupção. Meu objetivo aqui não é provar que tal conceito é errôneo, mas apenas destacar algumas premissas equivocadas que influenciaram o processo de abertura política e econômica da América Latina durante as últimas duas décadas do século XX. English Abstract: This paper discusses the general assumption that presidential systems in Latin America are prone to corruption because they concentrate too much power in the hands of presidents. A common argument of contemporary development theories is that such concentration of discretionary authority generates corruption because the executive can freely negotiate rent-seeking opportunities. Hence, a simplistic view of this problem would be that reducing the power of the executive would reduce corruption. My objective here is not to prove that such a claim is wrong, but only to highlight some misleading assumptions that informed the process of political and economic liberalization in Latin America during the last two decades of the twentieth century.