Special Courts in Brazil: Legal Transplants, "Innovation" and Its Impacts on Access to Justice

Wednesday, 18 July 2018: 08:45
Oral Presentation
Ana Carolina CHASIN, Universidade Federal de São Paulo (Unifesp), Brazil
Carmen FULLIN, Direito FGV-SP, Brésil/UOttawa, Brazil
This proposal aims to present an analyses about the way by which Brazilians' Civil and Criminal Special Courts operate. Oriented by the principles of orality, simplicity, informality, economy of proceedings and celerity, these courts can be considered the first Brazilian national experience related to the justice informalization. They resemble north-Americans' Small Claim Courts and Lower Criminal Courts and its creation can be interpreted as a case of legal transplant, which is relatively common among the attempts of institutional innovation that happen in the field of access to justice in Brazil.

The movement that led to its creation resorted from the "innovation" discourse by arguing that its characteristics would wider access to justice. Since their creation, however, the Special Courts deal with a tension between two orientations that live together inside the institution until nowadays: the pursuit of wider access to justice and the relief of the regular court overload.

This research profits from ethnography in order to verify how these two types of courts reflect this tension. By following the courts audiences as well as the institutions routines, we observed the way by which the cases are processed and the agreements are built.

In Brazil, the literature about the issue usually analyses the impact of these innovations separately in civil and criminal arenas. Notwithstanding, we could verify that a transversal analyses of the different kinds of small courts amplifies a broader understanding of the experiences of justice informalization. Both of the areas are marked by the acceleration of judicial service and the offering of a minimalist justice – where there is no space for a substantive law discussion –, as well as by a series of elements resulting from the asymmetry between the parties in dispute.