Brazilian Law and the Impact of Globalization
*Fábio Medina Osório
As an attorney familiar with both common law and civil law systems, observing the evolution of Brazilian law through the lens of globalization provides unique insights into the dynamic interplay between domestic legal traditions and international influences. While Brazil’s legal framework remains firmly rooted in the civil law tradition, characterized by codified statutes and the primacy of legislative enactments, recent developments indicate a gradual convergence with global legal
standards, especially those prominent in common law jurisdictions like the United States.
The Civil Law Tradition in Brazil
Brazil’s legal system is historically grounded in the civil law tradition, which originated from Roman law and was further developed through Napoleonic codifications. In this tradition, codified statutes and comprehensive legal codes serve as the principal sources of law, leaving the judiciary with a more constrained role in legal interpretation compared to their counterparts in common law systems. Judges are primarily tasked with applying the written law, and legal certainty is maintained through the strict adherence to legislative texts. The Brazilian Civil Code, Penal Code, and Code of Civil Procedure exemplify this legislative dominance, providing detailed frameworks that guide legal relations and the administration of justice.
This model parallels many European civil law systems, particularly in France, Italy, and Germany, where judicial discretion is similarly limited, and legal interpretation tends to follow a literal or doctrinal approach. However, Brazil has progressively evolved its civil law system to address the complexities of modern legal challenges, particularly in the context of a globalized economy.
The Emergence of Precedent in Brazil
A significant shift in Brazilian law, brought about by the influence of global legal trends, particularly from common law jurisdictions, is the increasing reliance on judicial precedent. Traditionally, Brazilian courts did not place much weight on prior judicial decisions, adhering instead to the legislative text. However, with the enactment of the 2015 Civil Procedure Code reforms, a new emphasis was placed on the doctrine of stare decisis, or the binding effect of judicial precedents, particularly from higher courts. Under this framework, decisions from Brazil’s Supreme Federal Court (STF) and Superior Court of Justice (STJ) have acquired greater authority in shaping the interpretation and application of laws across the judiciary. The adoption of mechanisms like súmulas vinculantes (binding precedents) and the resolution of repetitive appeals (recurso repetitivo) underscores Brazil’s shift toward a more unified and predictable legal system, echoing the role of precedents in common law systems such as the United States. This development enhances legal certainty by ensuring that lower courts adhere to established interpretations from superior tribunals, reducing disparities in judicial decision-making.
Comparison with the United States’ Common Law
Despite this move towards the integration of precedents, Brazil’s legal system still diverges from the common law tradition as practiced in the United States. In American jurisprudence, the doctrine of stare decisis is foundational, with judicial decisions, particularly from appellate courts, shaping the trajectory of legal principles over time. U.S. courts, especially the Supreme Court, often engage in the development of legal norms, filling gaps in statutory law and adapting principles to novel circumstances through case law.
In contrast, Brazilian courts are more restrained in their interpretative function, as statutes remain the primary source of law. While precedents are gaining significance, particularly through the binding authority of higher courts, judges in Brazil generally do not have the same latitude to create law as their American counterparts. The legislative branch remains the dominant force in shaping legal frameworks, and judicial activism is more constrained in comparison to the U.S. legal system.
Globalization and Legal Harmonization
The impact of globalization on Brazilian law is perhaps most evident in the increasing harmonization of legal standards across borders. Brazil’s integration into international trade agreements, participation in global regulatory bodies, and adherence to international treaties have compelled the country to adapt its legal system to meet global standards. This is particularly evident in areas such as corporate governance, financial regulation, and human rights, where international norms play an influential role in shaping domestic legislation.
For instance, in corporate and commercial law, Brazil has embraced international arbitration and adopted standards consistent with global business practices, allowing for greater cross-border legal certainty. Additionally, Brazil’s courts have increasingly recognized and enforced foreign judgments and arbitral awards, further integrating the country into the global legal framework. The convergence of legal systems is also seen in the influence of international human rights law on Brazilian jurisprudence. Brazilian courts, especially the STF, have cited international human rights conventions and decisions from supranational bodies in their rulings, reflecting a willingness to engage with international norms to protect fundamental rights. This mirrors a broader trend in civil law countries toward incorporating international legal principles into domestic legal reasoning.
Challenges of Legal Pluralism
Despite the advances brought about by globalization, Brazil faces challenges in reconciling its traditional legal system with emerging global trends. Legal pluralism—where multiple sources of law, including domestic codes, international treaties, and judicial precedents, coexist—can create tensions within the judiciary.
While the move towards a greater reliance on precedents fosters predictability, it also requires Brazilian courts to balance these precedents with legislative statutes and international norms, all while preserving the civil law system’s core principles. Moreover, the global influence on Brazilian law has led to debates about the appropriate role of the judiciary. Critics argue that the increasing emphasis on precedents risks undermining the legislature’s authority, while proponents contend that judicial precedents provide necessary clarity in an evolving and complex legal landscape.
Conclusion
Brazil’s legal system is at a pivotal moment of transformation, driven by the forces of globalization and the cross-pollination of legal traditions. While rooted in the civil law
tradition, Brazil’s courts are increasingly adopting elements of common law, particularly through the expanded use of precedents. This shift reflects a broader trend toward legal harmonization in a globalized world, where national legal systems must adapt to meet international standards and respond to global economic and
social challenges.
As Brazilian law continues to evolve, the country’s legal system will need to navigate the tensions between maintaining its civil law heritage and embracing the flexibility
and adaptability that common law principles, such as stare decisis, offer. In this globalized legal landscape, Brazil stands as an example of how legal systems can
adapt to new realities while preserving their foundational principles.
Author: Fábio Medina Osório, Managing Partner of Medina Osório Advogados, former Minister of the Federal Attorney General’s Office, Doctor of Administrative Law from Complutense University of Madrid.
