João Paulo Allain Teixeira and Willaine Araújo Silva (both Catholic University of Pernambuco) have posted Criticism of Legal Positivism and Alternative Law in Brazil: Assessment, Challenges, Tensions, and Prospects on SSRN. Here is the abstract:
The advent of the 1988 Constitution has highlighted a certain tension regarding the models of interaction between the roles played by the established branches of government. Against the backdrop of this tension lies a debate that is not always properly framed, involving criticism of Legal Positivism. In this context, the development of Critical Theories of Law that emerged in Brazil primarily from the 1980s onward plays a fundamental role. The main argument is that the association of uncritical formalism with the authoritarian structures hegemonically established in Brazil during the military regime has prevented the fulfillment of the promises brought by the 1988 Constitution. In Brazil, after just over three decades of constitutional experience, it is possible, through a critical assessment, to take a look at the Brazilian experience, re-examining the role of legal thought in shaping the country’s institutions. This largely involves revisiting the historical and social context in which critiques of positivism in Brazil developed, offering a renewed interpretation based on the experience accumulated in recent years. A particularly illuminating task is the analysis of the shifts undergone by critical theories, from their reception in the 1980s to their most recent developments. In this context, one can perceive a movement of progressive capture of the critical agenda, initially focused on the affirmation of progressive and emancipatory values. The aim of this article is thus to offer avenues for reflecting on the presumed crisis of legal positivism in Brazil and the role of the Judiciary in this context, discussing the achievements and difficulties faced by critical theories of law since their reception in Brazil and pointing out the possibilities for an emancipatory critique in the context of contemporary tensions.
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Lawrence Solum