This article seeks to discuss whether and how the judicial system has been assuming a new institutional role in the design of public policies aimed at promoting of Economical Social and Cultural Rights (ESCR) in developing countries. Considering that these rights are crucial for human and social development, the article discusses the ways in which the judicial system might interfere with the process of development.Alongside a theoretical debate, the article presents a functionalist comparative study of the public interest litigation in Brazil, India and South Africa. It focuses on how judges seek to promote ESCR as well as on the benefits and problems of their intervention in public policies created by democratic governments and legislatures.The diagnosis that judicial systems around the world play different roles from the ones recommended by the economic neoliberal mainstream shows that several different institutional arrangements are possible and that some of them might be more adequate to the reality of the developing world. Therefore, the article hopes to provide insights to rethink global governance and the current knowledge on law and political economy from a new paradigm.
This article seeks to discuss whether and how the judicial system has been assuming a new institutional role in the design of public policies aimed at promoting of Economical Social and Cultural Rights (ESCR) in developing countries. Considering that these rights are crucial for human and social development, the article discusses the ways in which the judicial system might interfere with the process of development.Alongside a theoretical debate, the article presents a functionalist comparative study of the public interest litigation in Brazil, India and South Africa. It focuses on how judges seek to promote ESCR as well as on the benefits and problems of their intervention in public policies created by democratic governments and legislatures.The diagnosis that judicial systems around the world play different roles from the ones recommended by the economic neoliberal mainstream shows that several different institutional arrangements are possible and that some of them might be more adequate to the reality of the developing world. Therefore, the article hopes to provide insights to rethink global governance and the current knowledge on law and political economy from a new paradigm.
This article seeks to discuss whether and how the judicial system has been assuming a new institutional role in the design of public policies aimed at promoting of Economical Social and Cultural Rights (ESCR) in developing countries. Considering that these rights are crucial for human and social development, the article discusses the ways in which the judicial system might interfere with the process of development.Alongside a theoretical debate, the article presents a functionalist comparative study of the public interest litigation in Brazil, India and South Africa. It focuses on how judges seek to promote ESCR as well as on the benefits and problems of their intervention in public policies created by democratic governments and legislatures.The diagnosis that judicial systems around the world play different roles from the ones recommended by the economic neoliberal mainstream shows that several different institutional arrangements are possible and that some of them might be more adequate to the reality of the developing world. Therefore, the article hopes to provide insights to rethink global governance and the current knowledge on law and political economy from a new paradigm.
The Misconduct in Public Office Law (Law n. 8.429/92) was enacted in order to improve the fight against corruption in Brazil, strengthening an agenda of judicial promotion of morality in politics. The bill might play an important role in the democratic system by curbing practices that go against the public interest and impair public funds. At the same time, the control of elected representatives' actions promoted by the Public Prosecutor's Office and by judges creates institutional tensions between the different political players involved in the application of the act. Such tensions are reinforced by the fact that the Misconduct in Public Office Law stands unclear in between the domains of Civil and Criminal Law, making use of fluid terms and lacking relevant procedural provisions.Given the lack of further theoretical development around the theme of administrative improbity, these normative gaps and uncertainties have been filled and clarified in a caseby-case fashion by the courts. Based on this diagnosis, the present research investigates the enforcement of Law n. 8.429/92 as to ascertain if the absence of a more solid theoretical ground allows for the accommodation of interests of various political players to the detriment of legal certainty. The empirical research analyzed the decision-making process over time. The aspects of vagueness and uncertainty in the bill raised by litigants and the legal arguments made by the courts were identified, as well as which players were successful in constructing a meaning to the social action of enforcing the Law n. 8.429/92.Focusing on Brazilian higher courts, 164 decisions from the Supreme Court and the Superior Court of Justice were systematically and qualitatively analyzed. The research falls into the field of the sociology of law and is based on a contemporary literature that draws on Max Weber's work. It aims to enable a broader understanding of how control agencies have been engaging in their struggle against administrative improbity in Brazil, assessing whether this system operates in a casuistic manner. By exploring the limits and potentialities of the enforcement of Law n. 8.429/92, it clarifies the extent to which the administration of justice in such cases truly fosters democratic improvements and broadens citizenship, or if, on the contrary, it leaves room for political manipulation.
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