I. Some Features of Religious Practice in Brazil
Religion in Brazil has played a prominent role in people's lives and society's design and one might say even a strategic one since the beginnings of the European occupation of the land by the Portuguese.1 The culture of Brazilian people is intertwined with religion or faith in some way and the entire country has been remarkably shaped by religious practices.2 On the one hand, it is easy to identify this influence in the celebrations, festivals, traditions, customs and other cultural activities which are all related at some level to religious motives and beliefs. For example, many of the annual Brazilian festivals and events are based upon the traditions of the Roman Catholic church, notably the famous Carnival which is held 40 days before Easter and is the last festive celebration before liturgical Lent. On the other hand, religious influence runs deep within the Brazilian ethos, adding an extra flavor to Brazilian identity (Brasilidade) and shaping the social, cultural and political fabric of the country.
The two institutions naturally suited for organizing the colonization of Brazil were the State and the Catholic church. […] In principle, there was a division of labor between these two institutions. The state had the fundamental role of guaranteeing Portuguese sovereignty over the colony […] This task presupposed that settlers in Brazil recognized the authority of the state—because they were forced to, because they agreed to, or for both reasons.
This is where the church came in. Since it was in charge of people′s behavior and “in control of their souls” in daily life, it was a very efficient means for conveying the idea of obedience and, strictly speaking, obedience to the power of the state. But that was not all the church would do. It was present throughout people's lives – in the decisive episodes of their birth, marriage, and death.3
According to journalist Sarah Brown, “Brazil is the most religious country in Latin America, with approximately 90 percent of all Brazilians associating themselves with some religion.”4 The latest official report produced by the Brazilian Institute of Statistics (IBGE)—Census 2010—shows that only 15 million people in total identify themselves as “irreligious” (which would include not only people with no affiliation but atheists as well).5
Moreover, “it is also the most religiously diverse nation on the continent, thanks to African influences from slavery 500 years ago, and more recent migration from Asia, Europe and the Middle East.”6
Due to its Portuguese heritage, it is the case that most Brazilian people are linked to the Roman Catholic Church and there are more Roman Catholics in Brazil than in any other country in the world. 7 The Catholic Church itself has played a distinguished role in the Brazilian history of human rights. For instance, as noted by the Religious Literacy Project, hosted by Harvard Divinity School, even though the Church supported Vargas's dictatorship during the thirties, it has been a champion for redemocratization and the defense of human rights against the military regime which lasted from mid-sixties to mid-eighties of the last century.
Protestantism is the largest minority religion in Brazil, with approximately 22 percent of the population practicing one of the Protestant doctrines. But numbers have grown in recent years, with some predictions that in the near future it will be the predominant religion in the country.9 Within Protestantism, it seems that Pentecostals (or Neo Pentecostals) make up the largest group:The endorsement of human rights, democracy, and religious freedom by the Second Vatican Council provided an official theological language within which to frame such concerns. The catalyzing event for the Church was the rise of military dictatorships between 1964 and 1980, which deepened Brazil's economic woes and ushered in a dark era of suppression, censure, torture, and killings, including those of Catholic priests, nuns and bishops.
In response, the Catholic Church in Brazil underwent a transformation from conservative buttress to the state in the 1930s to a prominent critical voice against capitalism and political policy, becoming the most radically progressive of the Latin American Catholic Churches. Priests and bishops joined the struggle for labor and land rights and in coming decades worked to expose abuses committed by the military junta. The Church organized community groups meant to address basic concerns among the poor, but which later became politicized under the military dictatorship. Underpinning these changes was the development of Latin American liberation theology, a set of ideas which emphasize the role and rights of the poor and marginalized, and social justice as salvation. Ultimately, the Church emerged as the primary oppositional voice against the military and facilitated the transition to democracy in the 1980s by allying itself with grassroots movements, trade unions, and opposition political parties. 8
As Professor Neil Turner describes,Pentecostalism is the fastest growing sector of Brazilian Protestantism. It is made up of Classic Pentecostalism, founded by European and American missionaries during the first half of the twentieth century, and Neo-Pentecostalism, a later generation of indigenous churches that emerged after 1970. The first group includes such significant denominations as the Christian Congregation, the Assembly of God, Church of the Foursquare Gospel, Brazil for Christ, and God is Love. Major Neo-Pentecostal churches include Sara Our Land Evangelical Community, Universal Church of the Kingdom of God, the International Church of the Grace of God, and Reborn in Christ.10
Pentecostals are now being portrayed as a political force to be reckoned with, although political analysis of their action may vary as appears below: 12Typically, evangelical Protestant Christianity in Brazil is characterized by a strong opposition to Catholicism in terms of socio and political economics. Over the past two decades, it has successfully played an important role in modifying the lives of the educationally and economically disadvantaged. In fact, evangelical Christianity and Pentecostalism in particular have provided significant stability in the lives of many of its followers in terms of social and economic progress by penetrating lives at the cultural level.11
As the Religious Literacy Project notes there is a strong African influence within the sector:The Pentecostals are increasing political participation, but they are doing so in a conservative way. Their leaders have sought not to alter but simply to adapt to Brazil's socioeconomic structure and political system. Pentecostal politicians are especially known for seeking patronage and privileges. In Brazil the poor do not want to revolt but to ascend the social ladder. The Pentecostal churches reflect this hope. Especially among the newer churches the primary concern of the leaders is power, and often their theologies are attuned to economic interests. The new churches have little notion of social justice on a national scale.13
Significant changes at the social level have necessitated the development of political interests and incorporated followers into the democratic political process. As a result, evangelical Protestants have become an increasingly powerful segment of the voting bloc in which presidential, congressional and senatorial candidates are courting them for support. As more evangelical candidates are elected to office in the house and senate, many vow to oppose attempts to legalize issues such as abortion, the death penalty, or homo sexual unions which they consider a breach of their faith. While these issues are important, many evangelical voters are more concerned with social issues such as reducing poverty, crime and unemployment.14
As for their practices, the supernatural realm is a characteristic of their beliefs and rituals:African-derived religions in Brazil15 include, most prominently, Candomblé and Umbanda, as well as Xango, Batuque, Cantimbo, and Macumba, which are regionally associated traditions. African-derived religions have played an important role in the formation of Afro-Brazilian ethnic identities, both historically and today. Such traditions have been both celebrated and denigrated at different times and by different actors, from the Catholic Church in the post-independence era—which characterized them as evidence of “backwards” African culture and Afro-Brazilians as failing to become “true Catholics”—to today's Pentecostals, who condemn Candomblé and Umbanda as “devil worship.” 16
A very important distinguishing feature of African-Brazilian religions is what has been described as syncretism,18 which derives from a blending of different religions giving birth to a new one.As suggested by the common Brazilian saying, “if one does not come due to love, one comes due to pain,” solving the problems of life, particularly physical healing, is central to both Candomblé and Umbanda. Illness, diagnosis, and cure all have a supernatural aspect and many of the religious rituals are strategies for maintaining or restoring physical, mental, or social well-being. Possession is another characteristic of African-derived religion, locating liminality within the physical being.17
According to Wagner Kuhn,
In this sense, slavery with its power tensions20 has played a fundamental role in determining this blending of beliefs and the survival of African religious heritage. Kuhn goes on to observe:The African people who were sold to colonial Brazil brought with them their religious beliefs and traditions. In order to survive the inquisitorial atmosphere of the Portuguese colonizers, many of the African slaves needed to mask their deities and saints or ancestors with Roman Catholic names. This process gave birth to the Afro-Brazilian religions —a form of dual allegiance that blends together various elements of Roman Catholicism, African Religions, and Kardecist spiritualism.19
Nonetheless there were changes as years passed by and this syncretic aspect of Brazilian religiosity has produced a form of religious pluralism which affords the possibility of subscribing to one set of beliefs, with resort to another in time of need. As Kuhn points out,From different communities and religious backgrounds, the slaves were mixed aboard the ships and then, at the final trade centers they were bought and also sent to different places of Brazil. This created a big impact upon the new environment in which they were placed. It transformed their reality. For they were lost, they were weak, and they wanted to survive, so they found a way to maintain their religious tradition: they masked their deities with Christian names—Roman Catholic ones.
[…]
Religious life in the slave communities was very difficult. The African slaves could not have their own religious services in a normal way. They were baptized into the Catholic faith without any regard of their will. There “they were obliged to camouflage their cults and saints with Christian names” and so they gradually learned to adapt themselves to the new system. Van Rheenen commented that “although the slaves were forced to outwardly embrace Catholicism, the gods that they brought from Africa were intertwined with this new religion.” 21
Other religions, such as Judaism, Buddhism or Islam, are also professed by some Brazilians, but compared with Christianity their numbers are not significant. As the Brazilian Institute of Statistics (IBGE) 2010 Census shows, altogether they add up to less than 1.04 percent of the Brazilian population.23This scenario described changed drastically during the twentieth century in Brazil, with the emergence of many more forms of spirituality and religious life. In practical terms, religion has been more effective in the transformation of the Brazilian society than science. Moreover, many elements of Roman Catholicism, Evangelical and charismatic Pentecostalism, spiritualism, and African religions have blended together; and science, mysticism, parapsychology, and new age occultism have been added to these syncretistic neo-religions in an unprecedented way. The result is a dual allegiance within the context of a religious pluralism where the believer can seek for both God and the world of spirits at the same time.22
This religious landscape is also showcased in popular language in many different situations. There is also a national joke to the effect that “God is Brazilian” which reveals, amongst other possible interpretations of the humorous statement, the level of divine worship and confidence in the supernatural of the society in general.
In recent years, Brazil has also become a strong exponent for “exporting” religious beliefs. 24 Charismatic Catholic and Pentecostal churches have established powerful transnational networks with a strong missionary focus. Thus in contrast with the “seemingly irredeemable” secularity of Europe, Latin America and Africa have seen an “explosive growth” in the number of their adherents, with Europe and even the United States now moving into the focus of these churches’ evangelizing zeal.25 The effect may be termed a process of ‘reverse missionizing’, with the result, suggest Cristina Rocha and Manuel Vásquez, that what is emerging is a “new religious cartography” with the Global South in the protagonist role.26“No matter what … by the end of the day things will get right … because “God is Brazilian”!
II. The Research Project: Freedom of Religion in the Brazilian Supreme Court in Three Decades (1988–2019)
This paper is part of a broader body of research in which we are seeking various interpretations of human rights in Brazil and trying to establish their discursive significance and social representation through the use of legal lenses, especially those crafted by the courts. Here we aim to understand how the opinions of the Supreme Court Justices are constructed when deciding cases concerning freedom of religion in Brazil, considering the boundaries above stated. The timeline considered covers 31 years, from 1988 to 2019, a period that begins with the promulgation of the new constitution in 1988 (which has symbolically reinstalled democracy in the country after the military rule that took place in Brazil since 1964) up to 2019 with the presentation of the seminar Global Constitutional Dialogue: Judicial Challenges for the 21st Century: The Judiciary and the Administrative State that has inspired this work. 27
To accomplish this, first we will present briefly the legal definition of freedom of religion in Brazil which constitutes the normative background of the discussion and then we will discuss our project, stressing the methodological approached we have adopted and showcasing our data findings.
A. The Legal Definition of Freedom of Religion in Brazil – The Normative Perspective of the 1988 Brazilian Constitution, Article 5, VI.
As noted by anthropologist Professor Paula Montero, “the principle of religious freedom became naturalized in public discourse as a condition indispensable to peace. Its protection remains at the base of the concepts of emancipation, democracy and prosperity that guide contemporary liberal states”.28
Contemporary Brazil29 does not stand outside this modern liberal tradition and freedom of religion is guaranteed by the general constitutional paramount clause of article 5 which is the normative basis of fundamental rights/human rights protection within the Brazilian legal system inaugurated by the 1988 Constitution.3031 There is also a specific provision written into the Constitution in article 5, subsection VI.32
Article 5: All persons are equal before the law, without any distinction whatsoever, Brazilians and foreigners residing in the country being ensured of inviolability of the right to life, to liberty, to equality, to security and to property, on the following terms […]
VI - freedom of conscience and of belief is inviolable, the free exercise of religious cults being ensured and, under the terms of the law, the protection of places of worship and their rites being guaranteed33.
The effect is to guarantee a pluralist approach and is understood as a way of recognizing different faiths within Brazilian society, at least in the normative domain.
Within this framework, Brazil has in place specific laws and policies that contribute generally to the free exercise of religion. The criminal code secures protection of religious freedom, as does CAÓ Act (Law 7716/1989, of Jan. 5) which defines the crime of racism as the different and disparaging treatment of a person exclusively because of his “race, colour, ethnicity, religion or national origin”, which has the effect of preventing him or her from gaining access to certain goods, services or places because of his or her condition. 34
This legal design has been considered by some as quite a satisfactory legal framework.35 But one can find some traces of religious intolerance that in reality threaten the idea of freedom of religion and jeopardize human rights protection. Even though the number of recorded incidents of aggression is not excessive, the violation itself is always symbolic because from “such practice emerge other issues, such as: the invisibilization of people, disrespect for their culture and also the loss of self-esteem and belonging”.36
B. The Brazilian Supreme Court (Supremo Tribunal Federal-STF)
The Brazilian Supreme Court (STF) is the highest court in Brazil with national jurisdiction over constitutional matters and its rulings cannot be appealed. The language of the Constitution states that the STF has “primary responsibility for safeguarding the Constitution”.
Article 102 of the 1988 Constitution provides for the court's jurisdiction; and regarding matters of constitutionality, the court decides on extraordinary appeal, cases decided in sole37 or last instance and the court has the additional power to try and to decide, as matters of original jurisdiction, direct claims of unconstitutionality of federal or state normative acts or make declaratory judgments of the constitutionality of federal laws or normative acts.38
Judicial review in Brazil, as Professor Keith Rosenn explains, “combines the decentralized, incidental form of judicial review of a common law country like the United States with the centralized, abstract form of judicial review of civil law countries such as Germany and Italy. Brazil's Constitution provides for both forms of judicial review.” 39 This means that both collateral and direct judicial review is available, ie the constitutionality of federal, state or municipal laws or decrees may be challenged in the course of litigation before any state or federal court or by direct action in Brazil's highest court, the Supreme Federal Tribunal (STF), or, in certain cases, before the state supreme courts (Tribunals of Justice). In short, the Brazilian system can be seen as a broad and complex scheme of judicial review, one might even say a relatively complicated one.
In terms of membership, the Court has 11 Justices, who are addressed in Portuguese as Ministro, chosen from citizens between the ages of 35 and 65, with extensive legal knowledge and being of good character. The Justices are nominated by the President with the Senate's approval. They are tenured with mandatory retirement at the age of 75, which is a general rule for all the judges in Brazil. Justices can be impeached by the Senate, in accordance with art. 52, ss. II, of the 1988 Constitution.
Every two years, members of the Supreme Court elect by secret ballot from within their membership a Chief Justice (who is called the President of the Court).40 A Vice-President is also elected. Re-election for a consecutive term is not allowed. The President of the Supreme Court is the third in the line of succession in the event of the incapacity of the President and Vice-President, or a vacancy in their respective offices. The President of the court is also the President of the National Council of Justice (Conselho Nacional de Justiça–CNJ)41 which is in charge of controlling the administrative and financial functioning of the judiciary and the performance of judicial duties nationwide.
The caseload of the Federal Supreme Court is extremely heavy. According to the CNJ's Supremo em Ação 2018 Report, between 2009 and 2016 there were 723,579 cases before the Court.42 In December 2016, 57,437 were still undecided, but in that same year, the Court handed down 117,426 rulings.43
C. The Project
Judicial institutions which provide legal mechanisms for conflict resolution play an important role in maintaining the social order of complex societies. Weaknesses in performance of their duties can contribute to conflict developing into outright violence that will be beyond the management of law and the courts. This circumstance alone indicates the need for investigations into the decision-making processes of the judiciary and the impact that these may have on maintaining the effectiveness of the rule of law.
The object of our academic investigation has always been based on an attempt to understand what the elements that form judicial decisions are and how they are articulated, especially when dealing with constitutional themes. In other words, we work from a political concept of constitutional jurisdiction, which is conceived as the field of disputes concerning the legitimating force of institutions and citizenship rights. This has presented us with the problem of understanding what the role of the Brazilian Federal Supreme Court as custodian of the Constitution might be and the discourses that their decision-making construct. That is, we aim to explain the decisionional grammar44 of the Supreme Court as we have been doing in previous work.45 From these studies, we have found that Brazilian legal culture reflects legal inequalities46 and that there is an absence of consensus-building logic in the Justices’ opinions, which contributes to continuing institutional instability and legal insecurity. We have found that the Supreme Court frequently lacks a strong level of rational consistency in the construction of those decisions that could be considered as guiding precedents for the lower courts, controlling the outcomes of new cases.
Rational consistency is taken here to be the discursive weight of the arguments produced by the Court which prevail because their rationale is convincing and persuasive and able to establish precedents to be followed by lower courts and citizens. The strength of the Court relies upon the quality of its rationales and not on the sole fact that the Court and its Justices have the power to decide. A strong level of rationality here implies that the opinions of the Justices have legitimacy because of the quality of their reasoning as opposed to relying on appeals to respect (as arguments of veneration) or the ipse dixit of self-authority. The reasoning of the Court should not rest mainly on the force of the appeal to authority (argumentum ab auctoritate) but rather on the coherence, evidence, objectiveness and persuasive force of the arguments it advances. The more the Court relies on arguments of its own authority the less it can focus on the specific merits of the case in hand and in this sense a low level of rational consistency contributes to promoting a culture of arbitrary interpretations of the law. This translates into an extreme level of opacity for judicial decisions in Brazil which can lead to a low degree of adherence to norms since the meaning of the law that can be grasped through judicial decision is unclear, thereby weakening the state's promise of the rule of law.47
Through the methodology of semiolinguistic analysis of political discourse, using Patrick Charaudeau's semiolinguistic theory as a methodological guide, this article now considers the discursive procedures and categories articulated by the Justices of the Brazilian Supreme Federal Court.48 Although Charaudeau studied the relations between the persuasive force of words and their uses in the political arena, we have expanded his framework to investigate the construction of the legitimacy of legal discourse by reference to the contextual meaning of language used by the judges. So, our interest rests on the social aspects of communication and the ways judges use language to come to a decision and communicate it.
Amongst the different possibilities that discourse analysis (DA) methods offer, Charaudeau's semiolinguistic discourse analysis can help identify and clarify a grammar of judicial decisions. It enables us to understand how legal discourse is constructed, what the intentions of its enunciator are and what the organizing structures might be. This enables us to glimpse the intentions in the discourses, through what is said and unsaid, the “relations between text and context”,49 and in the legal field, how these discourses are always organized by the three meaning-forming places—doctrine, rhetoric and culture—with their elements of justification or legitimation.50 Each corresponds respectively to a particular language exchange challenge: firstly, a place of elaboration of thought systems, beyond it, a place whose meaning is related to the act of communication itself, and finally, a place where commentary is produced.51 It should also be emphasized that the research that led to this article is still ongoing and, therefore, we elaborate an argument that presents our provisional reflections and hypotheses about the subject so that accordingly our results are preliminary.
III. Data Findings
One of the various academic challenges we face when dealing with judicial decisions is how to define a relevant corpus for analysis that is significant enough to answer the research question, supporting valid conclusions and at the same time feasible to be handled considering constraints of time, resources and personnel that often stress research initiatives.52 From our experience, this challenge can be broken down into a two-step process. First, we have to determine where to look for the decisions, counting on a database that is reliable and easily accessible. Second, we have to deal with the selection itself, defining and refining the corpus that will be subjected to the DA.
A. Building up the Corpus: Defining the Sources for Consultation & Selecting the Decisions
In Brazil, all judicial decisions are published in daily official reports called Diário Oficial53 which is broadly similar to the U.S. Federal Register,54 but not confined to federal government communications. Federal legislative acts, as well as judicial decisions (including courts of all tiers), are communicated to the public through these reports. At the federal level, this reporter is called Diário Oficial da União - D.O.U55 and from December 1, 2017, the Brazilian News Agency has announced that only the electronic version will be available.56 This is the official source to consult if one wants to search all the cases that have been decided by the federal judiciary, and specially the Supreme Court, making this a hugely time consuming enterprise; the database was not designed for scientific purposes, but was planned as a tool for giving the parties, the lawyers and the general public acknowledgment of the decisions themselves as a requirement of fair judicial proceedings.
So other reliable sources needed to be found. In this sense, in common with many other researchers in Brazil, we have resorted to the Supreme Court's official website where the cases and their decisions are available for public consultation, amongst other historical and institutional information. 57
The STF website offers a good range of searching possibilities with different entries, such as the parties’ names; the register number of the case; the type of proceedings; the Justices’ decisions; thematic topics; the legal provisions; etc. Amongst the possibilities we have opted to use a combination of the keywords and entries.
For the entry ‘Jurisprudência’ (which might roughly be translated into English as caselaw: http://portal.stf.jus.br/jurisprudencia/), we have used the keywords liberdade e religião/liberdade religiosa (freedom and religion/religious freedom).
For the entry ‘a Constituição e o STF’58 we have used the constitutional provision: CF art. 5, VI. We have checked our results three times in order to avoid missing cases.
The general data results revealed a total of 49 cases (25 +16 +8) as shown in the following chart.
| Entry | Keyword1Liberdade e religião | Keyword2Liberdade religiosa | Keyword3CF art. 5, VI |
|---|---|---|---|
| pesquisa de jurisprudência http://portal.stf.jus.br/jurisprudencia/ | 25 | 16 | - |
| a Constituição e o STF http://www.stf.jus.br/portal/constituicao/artigoBd.asp#visualizar | - | - | 8 |
In order to refine the cases, we have excluded those that we have found to be irrelevant bearing in mind our timeframe and our objective. We have excluded cases that were decided before 1988, those that were thematically irrelevant and those which have appeared more than once. So, eventually 38 exclusions were made and our final number of cases was 11: ADI 5.257, ADI 2.566, ADI 4.439, ADPF 54, RE 494.601, RHC 146.303, RHC 134.682, RE 859376 (tema 953), RE 979742 (Tema 952), ARE 790813 (tema 716), and STA 38959.
B. The Semantic Field
The idea of semantic field is related to the set of different meanings that a word (or a group of words) presents through the contexts in which it is used, revealing that words can refer to different realities within the same concept. 60 Considering that the same term has or can have several different meanings in the same text, depending on how it is used and which other words accompany it, the semantic field is formed by a group of words and their associated meanings. This is linked to the concept of polysemy. The semantic fields are often related to cultural attitudes about the objects that field describes.
In our research, considering the 11 cases we have studied, we identify the following terms that integrate the semantic field which informs the concept of freedom of religion in the Brazilian Supreme Court:61
the Bible - paramount book - religious behavior – secularism - freedom of religious belief – proselytism - freedom of religious expression - religious tolerance - confessional religious education - religious prejudice (discrimination/“religious racism”) - the Sabbath - religious ornaments - constitutional value balance - religious sentiment – boundaries for religious rights
C. Preliminary Results
As we have mentioned earlier this project is a work-in-progress so the set of three conclusions we are proposing as a closing for this paper should be taken as preliminary results signaling the need for further investigation to confirm these early impressions.
1. Even though the purpose of the project is to understand how the opinions of Federal Supreme Court Justices are constructed when deciding the cases concerning freedom of religion (as written in art.5, VI of the 1988 Brazilian Constitution), the first aspect that immediately calls attention is the fact that the number of cases is very small, almost “invisible” if compared to the overall docket of the Court. And even though the Constitution is almost 31 years old, all the cases have been discussed in the last decade. In a certain way, the fact that most Brazilians associate themselves with Roman Catholicism might confirm this low level of judicial litigation. Even though the data finding confirms, from the litigation perspective, that religious “conflicts are rare in Brazil” as some affirm,62 this should not be considered to demonstrate a total absence of social conflicts, as the reports previously mentioned show.63 Further investigation could adopt a qualitative/quantitative approach, trying to understand the reasons why so few cases reach the Supreme Court and showcasing the social conflict embedded in the cases.
2. Regarding the dimension of ideas and attitudes, freedom of religion is associated with beliefs, behavior and sentiment. Tolerance and prejudice are also concepts that can be found in the decisions as opposites, reflecting the common sense meaning. But secularism and proselytism are polysemic concepts for the Supreme Court which has shown difficulties in establishing semantic consensus. The lack of a clear definition of these categories impacts on the capacity of the Court to establish boundaries for acts which would be protected as the regular exercise of the religious freedom, setting them apart from those that could be considered abusive. There is a certain tendency towards the rationale of balancing values when the Court faces conflicts between freedom of religion and other fundamental rights. In this sense, we can see that the Court is aware of the legal debate, but there is no clear acknowledgment of the social (religious) conflicts which are reduced to a mere legal dispute to be solved by reference to the Justices personal view on the issue.
3. Last but not least, we could identify one category of the Brazilian decision-making grammar which reinforces our previous works on the subject, already referred throughout the text: the lack of consensus which produces what we call the disputatio mindset.64 The concept of disputatio mindset is a theoretical category which structures the Brazilian legal habitus or mind set and thereby models the reasoning and practices of the legal culture in Brazil. The ability to master and articulate its language is what permits one to navigate and function in the legal universe. However, it is a form of reasoning characterized by an open structure that inhibits the ability of participants to reach agreements, as an oppositional dynamics, whether they are parties to the conflict, legal practitioners or legal scholars. Attempts to engage with the reasoning of Brazilian judges suggest the absence of internal consensus about the knowledge produced by the Court, as one cannot point to the Court's view on the subject in question. On the contrary, what is to be found is the individual opinions of the judges which are aggregated to achieve the Court's position. The agreement here is on the outcome, but not on the reasons/argumentation that led to it.
In this way all the opinions of the judges can be considered to be “dissenting” votes, even when together they represent the majority of the Court because the disputatio mindset does not produce the consensuses or consensual truths which could assist the Court to manage the conflicts brought before it. If the process of legal argumentation does not give clear and meaningful content to the law, it contributes little to the objective regulation of social behavior that the rule of law requires. Instead it fosters more conflicts and divergences, as it allows for the closure of the proceedings, with the choice of one of the possible interpretations of the law, and produces no clear guidelines concerning the way the conflict should be managed, treated or mediated. From this perspective the operation of the disputatio mindset will encourage more conflicts, because these are returned to society without appropriate resolution.
If socialization is a process of adaptation of the individual in society, to be achieved by the internalization of social norms (including legal ones), the absence of shared meanings leaves members of society with no direction or clear instructions. Thus, the predictability of the legal consequences of human expectations and conducts is reduced and the prospects for reducing disputes and/or conflicts before they arise are diminished. The consequence for judges lower down in the hierarchy is that once they find no safe grounds to follow the precedents set by the Supreme Court, in the absence of clear hermeneutic constraints the effect of the disputatio mindset will work to mask the prevalence of their own personal opinions
Finally, the lack of consensus concerning legal meaning has the potential to manifest itself in the unequal distribution of justice among those who are constitutionally entitled to be subjected to the “equal protection under the law” clause in Brazil. When a constitutional guarantee becomes empty rhetoric in practice, the legitimacy of the rule of law as understood by western modern societies is seriously compromised.